Released by the Bureau of Democracy, Human Rights, and Labor, January 30, 1997.
India is a longstanding parliamentary democracy with a bicameral parliament. Prime Minister H. D. Deve Gowda, whose United Front (UF) party heads a 13-member parliamentary coalition, took office in June and heads the Government. President Shankar Dayal Sharma, who was elected by an electoral college made up of members of parliament and members of state assemblies, is Head of State and also has special emergency powers. The judiciary is independent.
Although the 25 state governments have primary responsibility for maintaining law and order, the central government provides guidance and support through use of paramilitary forces throughout the country. The Union Ministry for Home Affairs controls most of the paramilitary forces, the internal intelligence bureaus, and the nationwide police service; it provides training for senior police officers for the state-organized police forces. The armed forces are under civilian control. Security forces have committed significant human rights abuses, particularly in Jammu and Kashmir.
India has a mixed economy. The private sector is predominant in agriculture, most nonfinancial services, consumer goods manufacturing, and some heavy industry. Economic liberalization and structural reforms begun in 1991 continued largely unchanged despite a change of government. The economic problems are compounded by rapid population growth of 2 percent per year with a current total well above 900 million. Income distribution remained very unequal. Forty percent of the urban population and half the rural population live below the poverty level.
There continue to be significant human rights abuses, despite extensive constitutional and statutory safeguards. Many of these abuses are generated by intense social tensions, violent secessionist movements and the authorities' attempts to repress them, and deficient police methods and training. These problems are acute in Kashmir, where the judicial system has been disrupted by terrorist threats including the assassination of judges and witnesses, by judicial tolerance of the Government's heavy handed antimilitant tactics, and by the refusal of security forces to obey court orders. A decrease in abuses by security forces in Kashmir coincided with increased abuses by progovernment countermilitants.
Serious human rights abuses include: Extrajudicial executions and other political killings and excessive use of force by security forces; torture, rape, and deaths of suspects in police custody throughout the country; poor prison conditions; arbitrary arrest and incommunicado detention in Kashmir and the Northeast; continued detention throughout the country of thousands arrested under special security legislation; prolonged detention while under trial; widespread intercaste and communal violence; legal and societal discrimination as well as extensive violence, both societal and by police and other agents of government, against women; discrimination and violence against indigenous people and scheduled castes and tribes; child prostitution; and widespread exploitation of indentured, bonded, and child labor.
During 1996 India made further progress in resolving human rights problems. Following state elections in September and October, elected government was restored in Jammu and Kashmir for the first time in 6 years. Insurgency-related deaths were at the same level as last year, although the proportion of civilian deaths increased slightly apparently due to militant efforts to prevent elections and disrupt the newly elected government. State elections were also held in Uttar Pradesh, but results failed to resolve a political impasse and President's Rule was extended for an additional 6 months. In Punjab serious abuses of the early 1990's were acknowledged and condemned by the Supreme Court. Visits by international human rights groups, as well as continuing International Committee of the Red Cross (ICRC) prison visits in Kashmir, demonstrated increased transparency on human rights problems. The National Human Rights Commission (NHRC) continued to enlarge its useful role in addressing patterns of abuse, as well as specific abuses. The NHRC helped foster human rights education among the police and security forces, and advanced its program of human rights education in the schools.
Separatist militants were responsible for numerous, serious human rights abuses, including extrajudicial executions and other political killings, torture, and brutality. Separatist militants were also responsible for kidnaping and extortion in Kashmir and Northeast India.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killing
Political killings by government forces (including deaths in custody and faked encounter killings), progovernment countermilitants, and insurgents continued at a high level in the state of Jammu and Kashmir and the seven northeastern states, where separatist insurgencies continued.
Security forces committed an estimated 100-200 extrajudicial killings of suspected militants in Kashmir. Although well-documented evidence to corroborate cases and quantify trends is lacking, most observers believe the number of killings declined from previous years. However, the decline was at least partially offset by an increased number of killings by progovernment countermilitants. According to press reports and anecdotal accounts, those killed typically had been detained by security forces, and their bodies, bearing multiple bullet wounds and often marks of torture, were returned to relatives or were otherwise discovered the same day or a few days later. Security forces claim that these killings, when acknowledged at all, occur in armed encounters with militants. Members of the security forces are rarely held accountable for these killings.
Throughout the country, numerous accused criminals continue to be killed in encounters with police. Police personnel were wounded in a number of cases, however, and such incidents do not appear to reflect a pattern of extrajudicial execution. The most recent statistics, for 1995, show that 525 civilians and 159 police died in exchanges of gunfire involving police.
While extrajudicial killings continued in areas buffeted by separatist insurgencies, the press and judiciary continued to give attention to deaths in police custody and faked encounter killings elsewhere. According to NHRC statistics, 136 persons died in police custody in the year ending March 31. Many such persons were tortured (see Section 1.c.). The NHRC has focused on torture and deaths in custody. It has directed district magistrates to report all deaths in police and judicial custody and stated that failure to do so will be interpreted as an attempted coverup. Magistrates apppear to be complying with this directive. However, the NHRC has no authority directly to investigate abuses by the security forces, and security forces are therefore not required to--and do not--report custodial deaths in Kashmir or the Northeast. In February 24-year-old union leader Ram Gopal died in Faridabad while undergoing police interrogation on a theft charge. Charges related to the death were brought against a police inspector and the owner of a factory where the unionist was active. In July liquor dealer Debu Pramanik died after being detained and beaten by police in West Bengal, reportedly in revenge for selling liquor that sickened a policeman. In January the Supreme Court ordered prosecution of 27 Punjab policemen for abduction, illegal confinement, and murder of 4 suspected militants in a January 1994 incident described at the time as an encounter. Over 300 persons died in prison, many from natural causes, in some case aggravated by poor prison conditions (see Section 1.c.).
Killings and abductions of suspected militants and other persons by progovernment countermilitants emerged as a significant pattern in Kashmir. Countermilitants are former separatist militants who have surrendered to government forces but have retained their arms and paramilitary organization. Some observers number them at several thousand strong, but the precise figure is unknown. They committed an estimated 100 to 200 political killings in Kashmir, although this figure is speculative. For example, on March 20 journalist Sheikh Ghulam Rasool was abducted from his home by countermilitants reportedly angered by a news report criticizing their activities; Rasool's body was found in the Jhelum river a month later. There are credible reports that government agencies fund, exchange intelligence with, and direct operations of countermilitants as part of the counterinsurgency effort. Countermilitants are known to screen passersby at roadblocks and guard extensive areas of the Kashmir Valley from attacks by militants. In sponsoring and condoning countermilitant activity, which takes place outside the legal system, the Government cannot avoid responsibility for abductions, murders, and other abuses by these irregulars.
In March countermilitants believed to be fronting for the Rashtriya Rifles paramilitary force abducted lawyer and human rights activist Jalil Andrabi from his car in Srinigar. Andrabi was preparing to attend the U.N. Human Rights Commission in Geneva at the time of his abduction. His body, displaying marks of torture, was later discovered in the Jhelum river. Five countermilitants believed to be the abductors were found dead a month later. A court-directed investigation into Andrabi's abduction and murder was stymied when the Rashtriya Rifles did not respond to the court's request for assistance and denied investigators access to witnesses. However, the investigation continues and appears at year's end to be making progress. countermilitants also killed human rights monitor Parag Kumar Das in Assam in May.
As a result of terrorism aimed at preventing the holding of parliamentary and state assembly elections and, later, at disrupting and discrediting the newly elected state government, the proportion of civilian deaths in insurgency-related violence increased compared with 1995, although the total number of deaths was little changed. On October 23, two persons were killed by a car bomb outside the assembly members' hostel in Srinagar. In December 3 persons were killed and 40 injured, including a state assembly member, when a militant opened fire on and threw a grenade into a political meeting in Kulgam Towq. Newly elected chief minister Farooq Abdullah had been expected to visit Kulgam on the day of the attack and was the apparent target of two other grenade or bomb attacks in which several people were injured. Earlier in the year, terrorists were responsible for a number of mass killings of non-Muslims: In January 15 members of the Hindu community in the Doda district were abducted and later killed by terrorists; in May a group of 8 guest workers from Nepal were abducted near Srinagar and killed a few hours later; and in July another group of 10 non-Kashmiri laborers were shot and killed near Kupwara.
The total number of deaths in Kashmir was little changed compared with the total in 1995, although the proportion of civilian deaths increased. Reliable press reports indicate that 1,214 civilians, 94 security force personnel, and 1,271 militants died in insurgency-related violence in Kashmir in 1996. 1995 figures were 1,050 civilians, 202 security force personnel and 1,308 militants. The decrease in security forces deaths apparently reflects the increased role of countermilitants. Nongovernment organization (NGO) and other sources agree that civilian deaths attributed to security forces have decreased. Press reports indicate that the increase in civilian deaths is attributable to militant efforts to disrupt elections and the new government.
Prior to 1995, Andhra Pradesh police engaged in numerous encounter killings of Maoist Revolutionary Naxalites. Few such incidents were reported in 1995 and 1996, when the state unilaterally refrained from many enforcement actions. This restraint ended in August when, in response to continued Naxalite violence, the state reimposed a ban on the group. Although police did threaten to "liquidate" two human rights monitors (see Section 4), there were no reports that police had returned to previous patterns of abuse.
Killings by the Naxalites increased substantially after August. In November 13 policemen were killed in a Naxalite attack on a police station, and a deputy superintendent of police, his wife, and three others were killed by a Naxalite land mine. Also active in Bihar, Orissa, and West Bengal, Naxalites dispensed summary justice in "people's courts," which in some cases condemned to death suspected police informers, village headmen, and others as "class enemies" and "caste oppressors." In one such incident near Visakhapatnam, Andhra Pradesh in November, 13 Naxalites reportedly dragged a teacher from his home and cut his throat. In January in the Karimnagar district of Andhra Pradesh, five Naxalites and four civilians died in a shootout after police surrounded a people's court. In Bihar four policemen were killed in January in an attack on a police station in the Gaya district.
There were many allegations that military and paramilitary forces in the Northeast engage in arbitrary detention, abduction, torture, and extrajudicial execution of militants, as well as rape (see Sections 1.c. and 1.g.). According to human rights group, abuses in the Northeast are similar to those in Kashmir, though perhaps on a lesser scale. In Assam countermilitants have from time to time conducted abductions and killings, as exemplified in 1996 by the Parag Kumar Das killing (see below.) However, precise information on human rights violations in this relatively remote region is rare. Extensive, complex patterns of violence continued in the seven states of northeastern India. Numerous killings can be attributed to conflicts in each of the following categories: Between indigenous people, usually Buddhist or animist, and immigrant groups, usually Muslim or Hindu; between tribes of indigenous people; between security forces and militants of 1 or more of at least l7 insurgent groups; and among factions of insurgent groups.
Violence escalated in Assam following the death of the former chief minister in May and a change of government after elections in the same month. Between May and the end of August, more than 150 people were killed in the state. Bodo tribal militants and United Liberation Front of Assam (ULFA) insurgents killed 15 members of the security forces. Bodos also killed more than 50 members of the Santal minority and rendered roughly 200,000 homeless in a "cleansing" operation of Bodo-dominated areas.
In May ULFA claimed responsibility for killing the superintendant of police of the Tinsukhia district of Assam, together with his bodyguard and driver. Journalist Parag Kumar Das, known to be close to ULFA, was shot and killed a day later, allegedly by progovernment former ULFA gunmen.
In Nagaland in December, Naga militants killed 29 members of the rival Kuki tribal group and injured 29 others in an attack on a bus. In Tripura, also in December, tribal militants reportedly belonging to the National Liberation Front of Tripura killed 25 Bengali villagers and wounded 30. Tripura tribal militants also killed seven paramilitary personnel in an ambush in December.
According to human rights groups, unacknowledged, incommunicado detention of suspected militants continued in Kashmir although the practice again decreased compared with previous years. The Government acknowledges that, as of December, it held 2,070 persons in connection with the insurgency in 5 detention centers in Jammu and Kashmir. Of these, 1,298 were held under the Public Safety Act and 772 under other laws, including the Terrorist and Disruptive Activities Act. Several thousand others are held in short-term confinement in transit and interrogation centers.
Human rights groups maintain that as many as 3,000 more are held by the military and paramilitary forces in long-term unacknowledged detention in interrogation centers and transit camps nominally intended for only short-term confinement.
The Government maintains that screening committees run by the state government provide information about detainees to their families. However, other sources indicate that families are able to confirm the detention of their relatives only by bribing prison guards. A program of prison visits by the ICRC, which began in October 1995, is designed in part to help assure communications between detainees and their families. All acknowledged detention centers in Kashmir and Kashmiri detainees elsewhere in the country have been visited. The ICRC is not authorized access to interrogation centers or transit centers.
In Punjab the pattern of disappearances prevalent in the early 1990's appears to be at an end. Hundreds of police and security officials have not been held accountable for serious human rights abuses committed during the counterinsurgency of 1984-94. However, steps have been taken against a few such violators. In January the Supreme Court ordered the Central Bureau of Investigation (CBI) to prosecute 27 Punjab policemen in connection with the alleged encounter killing of 4 suspected militants in Gurdaspur in January 1994. The Court stated that, on the basis of a CBI report, there appeared to be prima facie cases against some police in the abduction and illegal confinement and against all 27 for conspiracy to murder.
The Supreme Court, acting on a report of the CBI ordered by the Court, in July directed the Punjab state government to permit prosecution of a superintendant of police and eight other policemen for the September 5, 1995 abduction of human rights activist Jaswant Singh Khalra. The Court also ordered that compensation be paid to Khalra's wife.
Khalra had been investigating reports that police in the Tarn Taran district had secretly disposed of bodies of suspected militants believed to have been abducted and extrajudicially executed. In connection with its report on Khalra's abduction, the CBI reported that 984 unidentified bodies were cremated by Punjab police in the Tarn Taran district. Supreme Court justices, reportedly expressing horror and shock at this report, ordered that the CBI continue its investigation and that the state government turn over relevant information. Although the CBI report has not been made public, a magazine reported that CBI confirmed that 1,683 unclaimed bodies were cremated by police in the Tarn Taran district alone between 1984 and 1995. Of these, 698 were identified but not claimed by relatives. Of the 985 unidentified bodies: 407 were reportedly killed by border security forces while trying to cross into India from Pakistan, many of whom were probably militants; 291 were subsequently identified; 84 died by drowning, in road accidents or by suicide; and 70 reportedly died in clashes between militant factions. Implicitly 133 were unidentified militants killed in the interior of the district. Police reportedly filed "first information reports" (FIR) accounting for each of the bodies. These numbers testify to the extent of the bloodshed during those years and, given the pattern of police abuses prevalent during the period, credibly include many killed in extrajudicial executions.
There are credible reports that police throughout the country often do not file required arrest reports. As a result, there are hundreds of unsolved disappearances in which relatives claim an individual was taken into police custody and never heard from again. Police usually deny these claims, countering that there are no records of arrest.
Militants in Kashmir and the Northeast continued to use kidnapings to sow terror, seek the release of detained comrades, and extort funds. According to the Government, as of July 31 terrorists in Kashmir kidnaped 418 persons in 1996--compared with 548 for all of 1995--of which 222 were killed by their captors. The July 1995 kidnaping of American, British, German, and Norwegian nationals by terrorists remains unresolved. The Norwegian captive was beheaded in August 1995. A captured terrorist stated that the remaining hostages--one American, two Britons, and a German--were murdered by their captors in December 1995. There has been no reliable evidence that they are alive since the fall of 1995. In the northeast state of Tripura, militants kidnaped 22 persons during January alone, including a state legislator. According to the Government, Tripura militants kidnaped 366 persons during 1995, of whom 20 are known to have been killed and 35 are unaccounted for. In Assam Bodo militants kidnaped the son of a state minister in February and a few days later killed a businessman who had been kidnaped for ransom in January.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits torture, and confessions extracted by force are generally inadmissible in court. Nevertheless, there is credible evidence that torture is common throughout India and that the authorities often use torture during interrogations. In other instances, they torture detainees to extort money and sometimes as summary punishment. The NHRC has called on the Government to sign the 1984 International Convention Against Torture. The new United Front Government vowed that it would.
In 1995 the U.N. Special Rapporteur on Torture reported that torture was practiced routinely by the army, the Border Security Force, and the Central Reserve Police Force against the vast majority of persons arrested for political reasons in Jammu and Kashmir. According to the Rapporteur, official investigations into allegations of torture, including those that resulted in custodial deaths, were rare. This state of affairs did not change. Past practices have included beating, rape, burning with cigarettes and hot rods, suspension by the feet, crushing of limbs by heavy rollers, and electric shocks. Because many alleged torture victims die in custody, and others are afraid to speak out, there are few firsthand accounts, although the marks of torture have often been found on the bodies of deceased detainees.
The prevalence of torture by police in detention facilities throughout the country is borne out by the number of cases of deaths in police custody (see Section l.a.). A post mortem examination of a young man who died in police custody in August reportedly found evidence of 51 external injuries, including burns and 30 injuries by a blunt object, and concluded that he had been tortured; police holding him claimed that the man died when he jumped from a jeep in an escape attempt.
According to the U.N. Special Rapporteur, torture victims or their relatives have reportedly had difficulty in filing compliants because police in Kashmir were issued instructions not to file a FIR without permission from higher authorities. In addition, Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers Act provides that unless approval is obtained from the central government, "(n)o prosecution, suit, or other legal proceeding shall be instituted. . .against any person in respect of anything done or purported to be done in exercise of the powers of the Act." This provision reportedly allows the security forces to act with virtual impunity.
The rape of persons in custody is part of the broader pattern of custodial abuse. Limits placed on the arrest, search, and police custody of women appear effectively to limit the frequency of rape in custody, although it does occur on occasion. The NHRC received reports of only three cases of custodial rape during the 1995-96 fiscal year. The 24-hour reporting requirement applies to custodial rape as well as custodial death. However, the requirement does not apply to rape by policemen outside police stations. NGO's claim that rape by police, including custodial rape, is more common than NHRC figures indicate. Although evidence is lacking, a larger number appears credible, in light of other evidence of abusive behavior by police and the likelihood that many rapes go unreported due to a sense of shame. A pattern of custodial rape by paramilitary personnel allegedly exists in the Northeast (see Section 1.g.), but is not included in NHRC statistics because it involves military forces.
Although custodial abuse is deeply rooted in police practices, increased press reporting and parliamentary questions offer evidence of growing public awareness of the problem. The NHRC has identified torture and deaths in detention as one of its priority concerns. As a result of NHRC investigations during the fiscal year, 22 police personnel were prosecuted during the fiscal year and 79 were suspended, most in both cases due to involvement in custodial abuse. Charges against police prosecuted for custodial abuse include murder; in one case in Bihar, six policemen were convicted and sentenced to death (the decision is under appeal.)
Prison conditions are poor. Prisons are grossly overcrowded, often housing over three times their designed capacity. The largest class of prisoners typically sleeps on bare floors, has inadequate sanitary facilities, and receives inadequate food and medical care. Prisoners with privileged status or with the personal or family means can supplement what is normally provided. There are three classes of prison facilities. Prisoners are not classified by the nature of their crimes, but by their standing in society. Class "C" prisoners are those who cannot prove they are college graduates or income taxpayers. Their cells are overcrowded, often have dirt floors, no furnishings, and poor quality food. The use of handcuffs and fetters is common. Class "B" prisoners--college graduates and taxpayers--are held under markedly better conditions. Class "A" prisoners are prominent persons, as designated by the Government, and are accorded private rooms, visits, and adequate food, which may be supplemented by their families. Class "A" prisoners are usually held in government guest houses.
Overcrowding in jails is severe. According to a statement in Parliament in 1994 by the Minister of State for Home Affairs, New Delhi's Tihar Jail, considered one of the best-run in the country, housed 8,577 prisoners--in facilities designed to hold 2,487. According to the Minister, 7,505 detainees awaited the completion of their trials, while 672 others had been on trial for 3 years or longer. Press reports, statements in court cases, and statements by government officials indicate that conditions remained essentially unchanged in 1996.
Nevertheless, prison conditions are a subject of press reports and court cases and have received attention from human rights groups. Press accounts of prison conditions include reports of sexual abuse of prisoners, the use of prisoners by prison officials as domestic servants, the sale of food and milk for prisoners on the black market, the sale of female prisoners to brothels, and the marketing and export of prison-made goods. Women constitute 2 to 6 percent of the total prison population, according to the 1987 report of Justice Krishna Aiyer. Although Parliament passed a Children's Act in 1960 to safeguard young prisoners against abuse and exploitation and a Juvenile Justice Act in 1986 provides that boys under 16 and girls under 18 are not to be held in prison, most states have not implemented these acts. The Supreme Court has criticized the state governments for not providing reformatories and separate detention facilities for children.
With the exception of an agreement with the ICRC for visits to detention facilities in Kashmir, the Government does not allow NGO's to monitor prison conditions.
During the 1995-96 fiscal year, 441 cases of custodial death and three cases of custodial rape were reported to the NHRC, including 133 deaths and 3 rapes in police custody. (The 308 deaths in judicial custody, occurring in a prison population of 155,000, much of which is held for years, include a large proportion of deaths from natural causes, in some cases aggravated by poor conditions in prisons. Deaths in police custody, which typically occur within hours or days of initial apprehension, more clearly imply violent abuse. The NHRC has no authority to investigate abuses by security forces directly, and security forces in Kashmir and the Northeast are not required to report custodial deaths to the Commission.)
d. Arbitrary Arrest, Detention, or Exile
The Government implemented during the early 1980's a variety of special security laws intended to help law enforcement authorities fight separatist insurgency. There were credible reports of widespread arbitrary arrest and detention under these laws.
Although one of these laws--the Terrorist and Disruptive Practices (Prevention) Act (TADA)--that had been subject to the most extensive abuse lapsed in May 1995, 3,785 persons previously arrested under the act continued to be held in a number of states at year's end, and a small number of arrests under TADA continued for crimes allegedly committed before the law lapsed. Criminal cases are proceeding against most of those still held under TADA, with more than 3,000 charged under other laws in addition to TADA. In February the Supreme Court eased bail guideliness for persons accused under TADA, taking into account the large backlog of cases in special TADA courts.
The Constitution requires that detainees have the right to be informed of the grounds for arrest, have the right to be represented by counsel, and, unless the person is held under a preventive detention law, the right to appear before a magistrate within 24 hours of arrest. At this initial appearance, the accused must either be remanded for further investigation or released. The Supreme Court has upheld these provisions. An accused person must be informed of his right to bail at the time of arrest and may, unless he is held on a nonbailable offense, apply for bail at any time. The police must file a charge sheet within 60 to 90 days of arrest; if they fail to do so, court approval of a bail application becomes mandatory.
The Constitution permits preventive detention laws in the event of threats to public order and national security. These laws provide for limits on the length of detention and for judicial review. Several laws of this type remain in effect.
The National Security Act (NSA) of 1980 permits detention of persons considered security risks; police anywhere in the country (except Kashmir) may detain suspects under NSA provisions. Under these provisions the authorities may detain a suspect without charge or trial as long as 1 year on loosely defined security grounds. The state government must confirm the detention order, which is reviewed by an advisory board of three high court judges within 7 weeks or arrest. NSA detainees are permitted visits by family members and lawyers and must be informed of the grounds for detention within 5 days (10 to 15 days in exceptional circumstances). At year's end, approximately 500 persons continue to be detained under the NSA.
The Jammu and Kashmir Public Safety Act (PSA) of 1978 covers corresponding procedures for that state. Over half of the detainees in Jamrau and Kashmir are held under the PSA.
The court system is overloaded. The result has been the detention of persons awaiting trial for periods longer than they would receive if convicted. Prisoners may be held months or even years before obtaining a trial date. According to a reply to a parliamentary question in July 1994, more than 111,000 criminal cases were pending in the Allahabad High Court, the most serious case backlog in the country, of which nearly 29,000 cases had been pending for 5 to 8 years. A statement to Parliament in July, indicated that criminal and civil cases pending before the country's high courts numbered nearly 2.9 million in 1995, roughly the same as in 1994 but an increase from 2.65 million in 1993.
The Government does not use forced exile.
e. Denial of Fair Public Trial
India has an independent judiciary with strong constitutional safeguards. Under a Supreme Court ruling, the Chief Justice, in consultation with his colleagues, has a decisive voice in selecting judicial candidates. The President appoints the judges, and they can serve up to the age of 62 on the state high courts and to the age of 65 on the Supreme Court.
Courts of first resort exist at the subdistrict and district levels. More serious cases and appeals are heard in state-level High Courts and by the national-level Supreme Court, which also rules on constitutional questions. Subdistrict and district judicial magistrates are appointed by state governments. High Court judges are appointed on the recommendation of the federal Law Ministry, with the advice of the Supreme Court, the High Court Chief Justice, and the chief minister of the state usually from among district judges or lawyers practicing before the same courts. Supreme Court judges are similarly appointed from among High Court judges. The Chief Justice is selected on the basis of seniority.
When legal procedures function normally, they generally assure a fair trial, but the process can be drawn out and inaccessible to the poor. Defendants have the right to choose counsel from a bar that is fully independent of the Government. There are effective channels for appeal at most levels of the judicial system.
The Criminal Procedure Code provides for an open trial in most cases, but it allows exceptions in proceedings involving official secrets, trials in which statements prejudicial to the safety of the State might be made, or under provisions of special security legislation. Sentences must be announced in public.
Muslim personal status law governs many noncriminal matters involving Muslims--including family law, inheritance, and divorce. The Government does not interfere in the personal laws of the minority communities, with the result that laws that discriminate against women are upheld.
In Kashmir the judicial system barely functions due to threats by militants against judges, witnesses, and their family members, because of judicial tolerance of the Government's heavy handed antimilitant actions, and the frequent refusal by security forces to obey court orders. Courts there are not willing to hear cases involving terrorist crimes or fail to act expeditiously on habeas corpus cases, if they act at all. As a result, there have been no convictions of alleged terrorists in Kashmir since before 1994, even though some militants have been in detention for years.
There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The police must obtain warrants for searches and seizures. In a criminal investigation, the police may conduct searches without warrants to avoid undue delay, but they must justify the searches in writing to the nearest magistrate with jurisdiction over the offense. The authorities in Jammu and Kashmir, Punjab, and Assam have special powers to search and arrest without a warrant.
The Indian Telegraph Act authorizes the surveillance of communications, including monitoring telephone conversations and intercepting personal mail, in case of public emergency or "in the interest of the public safety or tranquility." These powers have been used by every state government.
g. Use of Excessive Force and Violations of Humanitarian Law in Internal Conflicts
Both government forces and militants continue to commit serious violations of humanitarian law in the disputed state of Jammu and Kashmir. Between 350,000 and 400,000 Indian army and paramilitary forces are deployed in Jammu and Kashmir. The Muslim majority population in the Kashmir Valley is caught between the repressive tactics of the security forces and acts of wanton violence committed by the militants. Under the Jammu and Kashmir Disturbed Areas Act, and the Armed Forces (Jammu and Kashmir) Special Powers Act, both passed in July 1990, security forces personnel have extraordinary powers, including authority to shoot suspected lawbreakers and those disturbing the peace, and to destroy structures suspected of harboring militants or arms.
In March paramilitary and police forces clashed with militants who had attempted to occupy the Hazratbal shrine in Srinagar. Nine militants were killed in a gun battle while within the shrine compound. Later, after the militants voluntarily evacuated the shrine, 24 more were killed when security forces surrounded houses near the shrine in which the armed militants had taken shelter and opened fire with mortars, grenades, and firearms. Those surrounded were offered a chance to surrender, but only three women and two children left the houses before firing began. The houses were completely destroyed and the militants killed.
Civilian deaths caused by security forces diminished for the third consecutive year in Kashmir. The explanation appears to lie in press scrutiny and public outcry over abuses in previous years, increased training of military and paramilitary forces in humanitarian law, and greater sensitivity of commanders to rule of law issues. The improvement has taken the form of increased discipline and care in avoiding collateral civilian injuries and deaths (i.e., deaths in crossfire). The security forces have not abandoned the abduction and extrajudicial execution of suspected militants, much less embraced accountability for these abuses. However, the inclination of many commanders to distance their units from such practices has led to diminished participation in them and a transfer of some of this role to countermilitants.
In Manipur in August, the unusual willingness of a victim to speak up sparked a massive protest demonstration against a pattern of rape by security force personnel.
In an effort to sensitize paramilitary forces to human rights problems, the Director General of the Border Security Force and the NHRC sponsored a debate in February on the role of human rights among personnel of all seven paramilitary forces. In August the Chief of Army Staff issued revised human rights guidelines for military forces at a seminar on international humanitarian law sponsored by the Army Judge Advocate General, in cooperation with the ICRC and the Indian Red Cross.
Kashmiri militant groups were also guilty of serious human rights abuses. Terrorists attacked politicians in an effort to obstruct national parliamentary elections in May and June and state assembly elections in September. In addition to political killings and kidnapings (see Sections l.a. and 1.b.), terrorists engaged in extortion and carried out acts of random terror that left hundreds of Kashmiris dead. Terrorist acts by Kashmiri groups have also taken place outside Jammu and Kashmir. A Kashmiri terrorist group detonated a bomb at a railway station in New Delhi in January, killing 6, and a car bomb in a crowded market in New Delhi in May, killing 25. Many of the terrorists are not Indian citizens.
Kashmiris continued to be caught in the crossfire between militants on one side and security forces and countermilitants on the other. Unlike past years, however, there were no large-scale or prolonged clashes resulting in extensive loss of civilian life or property.
In the Northeast, militant violence directed against civilians resulted in numerous deaths and drove thousands from their homes. In an upsurge of violence related to a change of elected government in the state, Bodo militants in Assam killed nearly 50 members of the Santal minority and forced some 200,000 persons to flee their homes (see Section 1.a.). In Tripura, as of February, repeated militant attacks over preceding months had forced more than 10,000 tribals opposed to extremism or aligned with the political opposition to flee their homes. A December 30 bomb blast on a passenger train in Assam, which left at least 34 dead, was believed to be the handiwork of Bodo militants.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for these rights, and with some limitations they are exercised in practice. A vigorous press reflects a wide variety of public, social, and economic beliefs. Newspapers and magazines regularly publish investigative reports and allegations of government wrongdoing, and the press as a whole champions human rights and criticizes perceived government lapses. The Press Council of India is a statutory body of journalists, publishers, academics, and politicians with a chairman appointed by the Government. Designed to be a self-regulating mechanism for the press, it investigates complaints of irresponsible journalism and sets a code of conduct for publishers. This code includes not publishing articles or details that might incite caste or communal violence. The Council publicly criticizes newspapers or journalists it believes have broken the code of conduct, but its findings, while noted by the press community, carry no legal weight.
National television and radio, which are government monopolies, are frequently accused of manipulating the news to the benefit of the Government. However, international satellite television is widely distributed in middle class neighborhoods by cable and is gradually eroding the Government's monopoly on television.
Under the Official Secrets Act (OSA), the Government may restrict publication of sensitive stories, but the Government sometimes interprets this broadly to suppress criticism of its policies. The 1971 Newspapers Incitements to Offenses Act remains in effect in Jammu and Kashmir. Under the act, a district magistrate may prohibit the press from carrying material resulting in "incitement to murder" or "any act of violence." As punishment the act stipulates that the authorities may seize newspapers and printing presses. Despite these restrictions, newspapers in Srinagar regularly carry militant press releases attacking the Government and report in detail on alleged human rights abuses. The authorities allowed foreign journalists to travel freely in Kashmir, where they regularly spoke with militant leaders, and filed reports on government abuse.
A government censorship board reviews films before licensing them for distribution. The board deletes material deemed offensive to public morals or communal sentiment. Producers of video news magazines must also submit their products to the board, which occasionally censors stories that portray the Government in an unfavorable light. The board's ruling may be appealed and overturned. Kashmiri groups threatened journalists and editors and even imposed temporary bans on some publications. In July 19 journalists were detained by countermilitants, and 6 were threatened with death. All were released later the same day, following the intervention of paramilitary forces. On August 1, Ashraf Shaban, editor of the Urdu language Al Safa was abducted and held overnight.
Citizens enjoy complete academic freedom, and students and faculty espouse a wide range of views. In addition to 10 national universities and about 160 state universities, states are empowered to accredit locally run private institutions.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for the right of peaceful assembly and the right to form associations, and the Government generally respected these rights in practice.
The authorities sometimes require permits and notification prior to holding parades or demonstrations, but local governments ordinarily respect the right to protest peacefully. At times of civil tension, the authorities may ban public assemblies or impose a curfew under the Criminal Procedure Code. The authorities in Punjab frequently imposed such restrictions in previous years but limited their use since 1994; opposition Akali parties were permitted to hold public rallies and conduct membership drives.
Srinagar and other parts of Jammu and Kashmir were under curfew sporadically during much of the year.
c. Freedom of Religion
The Constitution provide for freedom of religion, and the Government repects this right in practice. India is a secular state in which all faiths generally enjoy freedom of worship. Government policy does not favor any religious group. There is no national law to bar proselytizing by Indian Christians. Foreign missionaries can generally renew their visas but since the mid-1960's the Government has refused to admit new resident foreign missionaries. Those who arrive now do so as tourists and stay for short periods. As of January 1993, there were 1,923 registered foreign Christian missionaries. As in the past, state officials refused to issue permits for foreign Christian missionaries to enter some northeastern states. Tension between Hindus and Muslims continue to pose a challenge to the secular foundation of the State (see Section 5).
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
Citizens enjoy freedom of movement within the country except in certain border areas where, for security reasons, special permits are required. Under the Passports Act of 1967, the Government may deny a passport to any applicant who "may or is likely to engage outside India in activities prejudicial to the sovereignty and integrity of India." The Government uses this provision to prohibit the foreign travel of some government critics, especially those advocating Sikh independence.
Citizens may emigrate without restriction.
Although India is not a signatory to the U.N. Convention and Protocol on Refugees, the Government follows its general principles. The Government cooperates with the office of the United Nations High Commissioner for Refugees (UNHCR) to a limited extent in connection with some categories of refugees, specifically those who fled Afghanistan. In earlier years the Government accepted a UNHCR role in overseeing the repatriation of refugees to Sri Lanka. The Government accepts the cooperation of other nongovernmental humanitarian organizations in assisting Tibetan and Sri Lankan refugees. The Government provided first asylum to approximately 6,000 additional refugees from renewed fighting in Sri Lanka in 1996. There were no reports of forced return of persons to a country where they feared persecution.
The Government recognizes certain groups, including Chakmas from Bangladesh, Tamils from Sri Lanka, and Tibetans, as refugees, providing them assistance in refugee camps or in resettlement areas. According to a government statement to Parliament in July, there were 98,000 Tibetans, 87,729 Sri Lankan Tamils, 66,234 Chakmas and Hajongs from Bangladesh, and 52 Burmese refugees. In the statement, the Government indicated that 18,932 Afghans, 255 Somalis, and 308 persons of other nationalities were living in India "under the mandate" of the UNHCR. Although the Government does not formally recognize persons in this latter category as refugees, it does not deport them. Instead, these people receive renewable residence permits or their status is ignored.
No further Chakma refugees were repatriated during 1996, pursuant to a 1993 agreement with the Government of Bangladesh. Human rights groups claimed that the Government reduced rations, medical care, and cash assistance to refugee camps holding Chakmas to encourage them to repatriate. In May the NHRC sent a team to investigate conditions in the camps. The team reported a shortage of water, meager rations, inadequate accommodations, inadequate medical care, inoperative wells, and evidence of malaria, water-borne diseases, and malnutrition among children. The NHRC subsequently directed concerned agencies to improve the administration of the camps.
The Supreme Court, in response to a case filed by the NHRC, intervened to protect another group of Chakmas who had come to India as refugees in the 1960's. The state government of Arunachal Pradesh, where these Chakmas had been settled, had threatened to remove them forcibly from the state in response to resentment expressed by the indigenous people.
According to the UNHCR, as of late November, there were 62,281 Tamil refugees from Sri Lanka living in 115 camps in India, including approximately 6,000 who fled the upsurge in fighting in Sri Lanka during 1996 and 338 suspected of militant activities, who are detained in special camps. An estimated 30-60,000 more Sri Lankan Tamils are not registered as refugees and are living outside the camps. NGO's report refugee complaints about deteriorated housing, poor sanitation, delayed dole payments, and inadequate medical care. Such complaints notwithstanding, minimum standards are being met. The state government, using central government resources, provides shelter and subsidized food for those in the camps. Enforcement of a Tamil Nadu government ban on NGO assistance to the camps has been relaxed and NGO's have visited the camps.
There are Chin ethnics among nonrecognized refugees in the northeastern states, particularly Mizoram. Their presence is generally tolerated. However, recent tensions between security forces and Chin National Force (CNF) insurgents operating in Burma have allegedly resulted in detention, interrogation, and expulsion of some persons associated with the CNF.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
Citizens exercise this right freely. India has a democratic, parliamentary system of government with representatives elected in multiparty elections under universal adult suffrage. A parliament sits for 5 years unless dissolved earlier for new elections, except under constitutionally defined emergency situations. State governments are elected at regular intervals except in states under President's Rule, i.e., rule by the central Government.
On the advice of the Prime Minister, the President may proclaim a state of emergency in any part of the national territory in the event of war, external aggression, or armed rebellion. Similarly, President's Rule may be declared in the event of a collapse of a state's constitutional machinery. The Supreme Court in May 1995 upheld the Government's authority to suspend fundamental rights during an emergency.
National elections for the popularly elected lower house of Parliament were held in several rounds from late April through June; more than half of the electorate of more than 600 million voted. The elections were generally free, fair, and peaceful. Repolling was undertaken in a number of polling places where the Election Commission suspected significant irregularities, and tightly enforced new restrictions on campaign expenditures, wall-painting, and the use of vehicles and loudspeakers were credited with enhancing the representative character of these elections.
State assembly elections were held in Jammu and Kashmir in September, resulting in an end of President's Rule and return to elected government for the first time in 6 years. Security forces in some places were seen to coerce members of the public to go to polling places, after militants called for a boycott of the elections. Some individuals said they welcomed this procedure as a pretext for evading militant retaliation against voters. Although state assembly elections were held in Uttar Pradesh in September and October, results failed to produce any clear majority in the assembly, and President's Rule was extended for an additional 6 months. This decision was subsequently approved by Parliament but was declared unconstitutional by the Allahabad High Court in mid-December on grounds that it exceeded the 1-year limit on President's Rule set by the Constitution and that all recourse to formation of an elected government had not been exhausted. An appeal of the High Court decision to the Supreme Court was pending at year's end, and President's Rule continued. In Gujarat President's Rule was declared and the assembly suspended in October, when the chief minister lost his majority. President's Rule was revoked and the assembly reconvened when a new government was formed a few weeks later.
There are no legal impediments to participation by women in the political process. A large proportion of women participate in voting throughout the country, and numerous women represent all major parties in the national and state legislatures. There are 57 women in the Parliament, including the deputy speaker of the upper house, but only one women in the Cabinet. Thirty percent of seats in elected village councils (panchayats) are reserved for women.
The Constitution reserves seats in Parliament and state legislatures for "scheduled tribes" and "scheduled castes" in proportion to their population (see Section 5). Indigenous people participate actively in national and local politics, but their impact depends on their numerical strength. In the northeastern states, indigenous people are a large proportion of the population and consequently exercise a dominant political influence in the political process. In Maharashtra and Gujarat, on the other hand, tribal peoples are a small minority and have been unsuccessful in blocking projects they oppose.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
Independent human rights organizations operate throughout the country investigating abuses and publishing their findings, which are often the basis for reports by international human rights groups. However, the police have targeted human rights monitors for arrest and harassment. In Tamil Nadu, the previous state government intimidated NGO's, including human rights groups, by enacting a law permitting the government to take over the management of any such group. Two persons involved in human rights activities, Jalil Andrabi in Kashmir and Parag Kumar Das in Assam, were killed by soldiers or progovernment counter militants, or both (see Section 1.a.). A court-directed investigation of the murder of Andrabi was in progress. On October 7 police in Warangal district, Andhra Pradesh, threatened Dr. Burra Ramulu and Amabati Srinivas, both members of the Andhra Pradesh Civil Liberties Committee, after they called for judicial inquiries into alleged police abuses against suspected Maoist guerrillas. On October 9, the Andhra Pradesh High Court ordered the state to provide protection for the men.
The Government appointed a National Human Rights Commission in October 1993 with powers to investigate and recommend policy changes, punishment, and compensation in cases of police abuse. In addition, the NHRC is directed to contribute to the establishment, growth, and functioning of nongovernmental human rights organizations. The Government appoints the members and finances the operations of the NHRC. Although the NHRC is seriously understaffed and prohibited by statute from directly investigating allegations of abuse involving army and paramilitary forces, the Commission has made effective use of indirect inquiries to address abuses by the armed forces.
During the 1995-96 fiscal year, the NHRC registered 9,751 complaints of human rights abuses, as well as 444 cases of custodial death or rape. A total of 1,277 cases remained pending from the preceding year. At the end of the fiscal year, 5,984 cases had been dismissed, 1,178 "disposed of with directions," 546 concluded, and 3,535 remained pending.
The NHRC organized or participated in several joint programs with NGO's and worked with human rights NGO's in its investigation of individual complaints. The NHRC has also worked to build a "culture of human rights" by actively encouraging the introduction of human rights syllabuses into universities and public schools. In March it launched a program to train instructors of teachers in human rights. Sixteen hundred instructors are receiving 6 months training on a continuing basis with a goal of giving human rights training to all of the country's 1 million teachers at the elementary and secondary levels. NHRC-supported programs are already underway at the university level. In February the NHRC cosponsored debates by personnel of Indian paramilitary forces on the role of human rights, in what is to be the first in an annual series; in December the Commission cosponsored an essay contest by police on "custodial crime" and "The role of police in human rights." It also sponsored human rights education programs for the police and a seminar in July on human rights and terrorism in which senior police officials and NGO representatives participated. State human rights commissions have been established in West Bengal, Himachal Pradesh, Assam and Madhya Pradesh. In addition, special courts to hear human rights cases have been established in Tamil Nadu, Uttar Pradesh, and Andhra Pradesh.
The NHRC was also involved in programs to eliminate child labor (see Section 6).
The prison visits program in Kashmir of the International Committee of the Red Cross (ICRC), initiated in October 1995, continued through the year. ICRC representatives also continued training police and border security force personnel in international humanitarian law. In August the ICRC and Indian Red Cross Society, together with the Army's Judge Advocate General, cosponsored a seminar on international humanitarian law.
Several international human rights organizations visited India during the year. An Amnesty International (AI) delegation made a month-long visit in July-August, the first AI visit since 1992. The team visited Delhi, Karnataka, and Rajasthan but was not permitted to visit Kashmir. After discussions with the AI team, (now retired) NHRC Chairman Ranganath Misra publicly urged that AI be permitted to visit the Kashmir valley. A Human Rights Watch researcher visited Kashmir in January. U.N. Human Rights Commission Special Rapporteur on Religious Intolerance Abdul Fateh Amor visited India, including Kashmir, as part of a three-member delegation in December.
An Asia-Pacific human rights NGO congress was held in New Delhi in December, attended by delegates from throughout the region.
Section 5 Discrimination Based on Race, Sex Religion, Disability, Language, or Social Status
The traditional caste system as well as differences of ethnicity, religion, and language deeply divide Indian society. Despite laws designed to prevent discrimination, there are other laws as well as social and cultural practices that have a profound discriminatory impact.
Domestic violence in the context of dowry disputes is a serious problem. In the typical dowry dispute, a groom's family will harass a woman they believe has not provided sufficient dowry. This harassment sometimes ends in the woman's death, which family members often try to portray as a suicide or kitchen accident. Although most "dowry deaths" involve lower and middle-class families, the phenomenon crosses both caste and religious lines.
In an answer to a parliamentary question in July, the Government reported that 5,817 dowry deaths occurred in 1993, 4,936 in 1994, and 4,811 in 1995. Under a 1986 amendment to the Penal Code, the court must presume the husband or the wife's in-laws are responsible for every unnatural death of a woman in the first 7 year of marriage--provided that harassment is proven. In such cases, police procedures require that an officer of deputy superintendent rank or above conduct the investigation and that a team of two or more doctors perform the post mortem procedures.
According to information presented to the Parliament by the Home Ministry in July, 6,735 cases of dowry death were before the courts in 1994. Of these, 461 resulted in conviction, 973 in acquittals, and 212 were compounded or withdrawn. This compares with 5,713 cases, 341 convictions, and 647 acquittals in 1993. Sentences included life imprisonment.
There is an elaborate system of laws to protect the rights of women, including the Equal Remuneration Act, the Prevention of Immoral Traffic Act, the Sati (widow burning) Prevention Act, and the Dowry Prohibition Act. However, the Government often is unable to enforce these laws, especially in rural areas where traditions are deeply rooted. Female bondage and forced prostitution are widespread in parts of society. Government statistics show that registered cases of violence against women--including molestation, rape, kidnaping, and wife murder (dowry deaths)--numbered 83,964 in 1993, 98,948 in 1994 and 100,846 in 1995. There were reports during the year of gang rapes as penalties for alleged adultery or as means of coercion or revenge in rural property disputes and feuds. Higher female mortality at all age levels, including female infanticide, accounts for a decline in the ratio of females to males to 927 per 1,000 in 1991, from 955 per 1,000 in 1981 and 972 per 1,000 at the turn of the century.
The personal status laws of the religious communities discriminate against women. Under the Indian Divorce Act of 1869, a Christian woman may demand divorce only in the case of spousal abuse and certain categories of adultery while for a man adultery alone is sufficient. Under Islamic law, a Muslim husband may divorce his wife spontaneously and unilaterally; there is no such provision for women. Islamic law also allows a man to have up to four wives but prohibits polyandry.
The Hindu Succession Act provides equal inheritance rights for Hindu women, but married daughters are seldom given a share in parental property. Islamic law recognizes a woman's right of inheritance but specifies that a daughter's share should be only one-half that of a son.
Under tribal land systems, notably in Bihar, tribal women do not have the right to own land. Other laws relating to the ownership of assets and land accord women little control over land use, retention, or sale.
There are thousands of grassroots organizations working for social justice and economic advancement of women, in addition to the National Commission for Women. The Government usually supports these efforts, despite strong resistance from traditionally privileged groups.
The Government formed in June made compulsory elementary education and an increase in expenditure on elementary education part of its program. The new Government also affirmed its support for the existing program for the elimination of child labor, which is aimed at progressively withdrawing children from the workplace and placing them in schools by 2000 through initiatives in education, rural development, women and child development, health, and labor programs. A Supreme Court decision in December raised penalties for employers of children in hazardous industries and establishing a welfare fund for formerly employed children. (see Section 6.d.).
There are an estimated 500,000 street children nationwide. Child prostitution in the cities is rampant, and there is a growing pattern of traffic in child prostitutes from Nepal. According to one estimate 5,000 to 7,000 children, mostly aged 10 to 18, are victims of this traffic annually.
The Child Marriage Restraint (Amendment) Act of 1976 prohibits child marriage, a traditional practice in northern India. The act raised the age of marriage for girls to 18 from 15, but the Government does not enforce it effectively. According to one report, 50 percent of the girls in Bihar, Rajasthan, Uttar Pradesh, and Madhya Pradesh are married at or before age 16.
The traditional preference for male children continues. Although a law passed in September 1994 prohibits the use of amniocentesis and sonogram tests for sex determination, they are widely misused for this purpose and termination of a disproportionate number of pregnancies with female fetuses occurs. Human rights groups estimate that at least 10,000 cases of female infanticide occur yearly, primarily in poor rural areas. In addition, parents often give priority in health care and nutrition to male infants. Women's rights groups point out that the burden of providing girls with an adequate dowry is one factor that makes daughters less desirable. Although abetting or taking dowry is theoretically illegal under the Dowry Prohibition Act of 1961, it is still widely practiced.
People with Disabilities
The Ministry of Welfare has principal responsibility for programs for the disabled, and it delivers comprehensive rehabilitation services to the rural population through
16 district centers. A national rehabilitation plan commits the Government to putting a rehabilitation center in each of more than 400 districts, but services are still concentrated in urban areas. The Government reserves 3 percent of positions in official offices and state-owned enterprises for people with visual, hearing, or orthopedic disabilities. The Government provides special railway fares, education allowances, scholarships, customs exemptions, and rehabilitation training to assist people with disabilities. There is no legislation or otherwise mandated provision of accessibility for the disabled.
The Innerline Regulations enacted by the British in 1873 still provide the basis for safeguarding tribal rights in most of the border states of northeastern India. These regulations prohibit any person, including Indians from other states, from going beyond an inner boundary without a valid permit. No rubber, wax, ivory, or other forest products may be removed from the protected areas without prior authorization. No outsiders are allowed to own land in the tribal areas without approval from tribal authorities.
Despite constitutional safeguards, the rights of indigenous groups in eastern India are often ignored. There has been encroachment on tribal land in almost all the states of eastern India, including by illegal immigrants from Bangladesh and businesses that have removed forest and mineral products without authorization. Moreover, persons from other backgrounds often usurp places reserved for members of tribes and lower castes in national education institutions.
Such violations have given rise to numerous tribal movements demanding protection of land and property rights. The Jharkhand Movement in Rihar and Orissa, and the Bodo Movement in Assam, reflect deep economic and social grievances among indigenous people. In the Jharkhand area, tribal people complain that they have been relegated to unskilled mining jobs, have lost their forests to industrial construction, and have been displaced by development projects. The Government has considered the creation of an independent Jharkand state, but the affected state governments oppose the idea.
However, there is some local autonomy in the northeast. In Meghalaya tribal chiefs still wield influence in certain villages. The Nagaland government controls the rights to certain mineral resources, and autonomous district councils in Tripura, Assam, and Meghalaya control matters such as education, rural development, and forestry in cooperation with the state governors.
The Constitution gives the President authority to specify historically disadvantaged castes and tribes which are entitled to affirmative action in employment and other benefits. These "scheduled" tribes and castes benefit from special development funds, government hiring quotas, and special training programs.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 specifies new offenses against disadvantaged people and provides stiffer penalties for offenders. However, this act has had only a modest effect in curbing abuse. Government statistics indicate that 36,310 cases of abuse were committed against members of scheduled castes and tribes in 1995, compared with 38,927 in 1994. In a particularly gruesome incident on June 11, 20 low-caste villagers in the Bihar village Barki Kharwan, including pregnant women and children, were massacred by an upper caste private militia group. The Home Minister visited the village to investigate the incident personally, and 18 policemen were subsequently suspended for failing to intervene. A Government commission is charged with giving special attention to the problems of the scheduled castes and tribes and submits an annual report.
The practice of untouchability was in theory outlawed by the Constitution and the 1955 Civil Rights Act, but it remains an important aspect of life. Intercaste violence claims hundreds of lives each year.
Controversy between Hindus and Muslims continues with regard to three sites where mosques were built centuries ago on sites where temples are believed to have previously stood. The potential for renewed Hindu-Muslim violence remains considerable. The NHRC undertook to continue investigation of 1992 Hindu-Muslim violence in Bombay after the Maharashtra state government in January ordered that a commission of inquiry be disbanded without completing its report. The commission was reinstated in May.
The Religious Institutions (Prevention of Misuse) Act makes it an offense to use any religious site for political purposes or to use temples for harboring persons accused or convicted of crime. While specifically designed to deal with Sikh places of worship in the Punjab, the law applies to all religious sites.
Fear of political violence drove most Hindus in the Kashmir Valley (Pandits) to seek refuge in camps in Jammu or with relatives in New Delhi or elsewhere. The Pandit community criticizes bleak conditions in the camps and fears that a negotiated solution giving greater autonomy to the Muslim majority might threaten its own survival in Kashmir as a culturally and historically distinctive group. The Pandits were permitted to vote in their districts of origin by absentee ballot in national and state elections during the year.
Section 6 Worker Rights
a. The Right of Association
The Constitution provides for the right of association. Workers may establish and join unions of their own choosing without prior authorization. There are five major recognized national trade union centrals, each of which is associated with, but not necessarily controlled by, a political party.
Trade unions often exercise the right to strike, but public sector unions are required to give at least 16 days' notice prior to striking. Some states have laws requiring workers in certain nonpublic sector industries to give prior strike notice.
The Essential Services Maintenance Act allows the Government to ban strikes and requires conciliation or arbitration in specified essential industries. Legal mechanisms exist for challenging the assertion that a given dispute falls within the scope of this act. The Industrial Disputes Act prohibits retribution by employers against employees involved in legal strike actions. This prohibition is observed in practice.
Abuses against nationally organized unions or unionized workers are generally not a problem. However, unaffiliated unions of low caste or tribal workers are not always able to secure for themselve the protections and rights guaranted by law. In February the death of a plant-level union leader in police custody, after he had been arrested on theft charges brought by his employer (see Section 1.a.), was an unusual instance of abuse. Charges related to the killing have been brought against both the police and the employer.
Unions are free to affiliate with international trade union organizations.
b. The Right to Organize and Bargain Collectively
The right to bargain collectively has existed for decades. The Trade Union Act prohibits discrimination against union members and organizers, and employers may be penalized if they discriminate against employees engaged in union activities.
Collective bargaining is the normal means of setting wages and settling disputes in unionized plants in the organized industrial sector. Trade unions vigorously defend worker interests in this process. Although a system of specialized labor courts adjudicates labor disputes, there are long delays and a backlog of unresolved cases. When the parties are unable to agree on equitable wages, the Government may set up boards of union, management, and government representatives to determine them.
In practice legal protections of worker rights are effective only for the 28 million workers in the organized industrial sector, out of a total work force of more than 376 million. Outside the modern industrial sector, laws are difficult to enforce. Union membership is rare in this informal sector and collective bargaining does not exist.
There are seven export processing zones (EPZ's). Entry into the EPZ's is ordinarily limited to the employees. Such entry restrictions apply to union organizers. While workers in the EPZ's have the right to organize and bargain collectively, union activity is rare. In addition unions, content with their role in public sector enterprises, have not vigorously pursued efforts to organize private-sector employees anywhere in the years since EPZ's were established. Women constitute the bulk of the work force in the EPZ's.
c. Prohibition of Forced or Compulsory Labor
The Constitution prohibits forced labor, and legislation passed in 1976 specifically bans the practice of bonded labor. A Supreme Court decision defined forced labor as work at less than the minimum wage, which is usually set by the state governments. Under this definition, which differs from that of the International Labor Organization (ILO), forced labor is widespread, especially in rural areas.
Bonded labor, the result of a private contractual relationship whereby a worker incurs or inherits debts to a contractor and then must work off the debt plus interest, is illegal but widespread. The Government estimates that between enactment of the Bonded Labor (Regulation and Abolition) Act in 1979 and March 31, 1993, approximately 251,424 bonded workers had been released from their obligations. Other sources maintain that those released are only one-tenth of the total number of bonded laborers. State governments are responsible for enforcing the act. Offenders may be sentenced to up to 3 years in prison but prosecutions are rare.
d. Minimum Age for Employment of Children
The Constitution prohibits employment of children under 14 years of age in factories, mines, or other hazardous employment. It also encourages the state governments to provide free and compulsory education for all children up to the age of 14. A law passed in 1986 banned the employment of children under age 14 in hazardous occupations, such as glass making, fireworks, match factories, and carpet weaving and regulated their employment in others. The Factories Act and the Child Labor Registration Act limit the hours of workers below the age of 15 to 4.5 hours per day.
The Government estimates that there were 17.5 million child workers in 1985. The ILO estimates the number at 44 million, while NGO's claim that the figure is 55 million. Interpolation of census figures by the National Labor Institute indicates that of a total of 203 million children between the ages of 5 and 14, 116 million are in school, 12.6 million are in full time employment, and the status of 74 million is unknown. Most, if not all of the 87 million children not in school do housework, work on family farms, work alongside their parents as paid agricultural labor, work as domestic servants, or are otherwise employed.
The enforcement of child labor laws is the responsibility of the state governments. Enforcement is not effective, especially in the informal sector where most of the children are employed. The continuing prevalence of child labor may be attributed to social acceptance of the practice and the failure of the state governments to make primary school education compulsory.
The new national Government formed in June has continued a comprehensive plan to eliminate child labor from hazardous industries by the year 2000. This program, for which approximately $260 million has been budgeted, includes enhanced enforcement of child labor laws, income supplements for families, subsidized school lunches in areas where child labor is concentrated, and a public awareness campaign. Recognizing a need to ensure that primary education is made universal and compulsory by state governments, the new Government committed itself to making primary education a fundamental constitutional right, not merely a directive principle. It has also pledged to raise educational expenditures to 6 percent of the budget and to spend at least 50 percent of this amount on primary education. The NHRC, continuing its own child labor agenda, organized NGO programs to provide special schooling, rehabilitation, and family income supplements for children in the glass industry in Firozabad. The NHRC also intervened in individual cases. A December 10 Supreme Court decision imposed a penalty of about $570 (20,000 rupee) on persons employing children in hazardous industries and stipulated that parents or guardians of children receive an income supplement payment from a fund created with this money, on condition that the children removed from employment attend school.
e. Acceptable Conditions of Work
The directive principles of the Constitution declare that "the State shall endeavor to secure...to all workers...a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities." Laws set minimum wages, hours of work, and safety and health standards. Laws governing minimum wages and hours of work are generally observed in industries subject to the Factories Act but are largely unenforced elsewhere and do not ensure acceptable conditions of work for the nine-tenths of the work force not subject to the Factories Act. Enforcement of safety and health standards is lax.
Minimum wages vary according to the state and sector of industry. Such wages are considered adequate only for a minimal standard of living. Most workers employed in units subject to the Factories Act receive much more than the minimum wage, including mandated bonuses and other benefits. The state governments set a separate minimum wage for agricultural workers but do not enforce it well.
The Factories Act establishes an 8-hour workday, a 48-hour workweek, and various standards for working conditions. These standards are generally enforced and accepted in the modern industrial sector, but tend not to be observed in older and less economically robust industries. State governments are responsible for enforcement of the Factories Act. However, the large number of industries covered by a small cadre of factory inspectors and their limited training and susceptibility to bribery make for lax enforcement.
Although occupational safety and health measures vary widely, in general neither state nor central government resources for inspection and enforcement of standards are adequate. Safety conditions tend to be better in the EPZ's. The law does not provide workers with the right to remove themselves from work situations that endanger health and safety without jeopardizing their continued employment.
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