International Commission for Human Rights   Commission Internationale pour les droits de l'homme   Comisión Internacional por los Derechos Humanos   اللجنة الدولية لحقوق الإنسان   国际人权委员会   Международная комиссия по правам человека

HRC22

HRC22 (3)

International Human Rights Association for American Minorities (IHRAAM) and  International Commission for Human Rights (ICHR), condemn the secret execution of a Kashmiri youth, Muhammad Afzal Guru, at New Delhi’s Tihar jail in Shashikumar Velath on the 9th February 2013, ordered by the Government of India in contravention of having accepted the recommendation to put moratorium on capital punishment during its Universal Periodic Review (UPR) in the United Nations Human Rights Council 21st session, in September 2012.

Indeed, given the United Nations Human Rights Council’s (UNHRC) firm opposition to capital punishment on clear ethical, moral and human rights grounds, UNHRC shall have no hesitation in joining the global condemnation of the hanging of Afzal Guru.

The people of Kashmir have been anguished and shocked by the execution. IHRAAM and ICHR would like to raise the following points:

  1. The evidence against Afzal Guru in this matter was entirely circumstantial. This was accepted by the trial court, the High Court, and ultimately by the Supreme Court of India. This is why the Supreme Court in its judgment stated: “As is the case with most conspiracies, there is and could be no direct evidence amounting to criminal conspiracies..... The incident, which is resulted in heavy casualties had shaken the entire nation, and the collective conscience of society will only be satisfied if capital punishment is awarded to the offender.”  In our opinion, this itself speaks in volumes, the conviction and the punishment being based on political considerations;
  2. It has been widely recognised by the Indian legal fraternity that Afzal Guru was not provided with adequate legal assistance, as a result of which his entire trial was prejudicial and unfair. The Supreme Court judgement in its numbered paragraph 18 records this point raised by Mr Sushil Kumar, appearing for Afzal Guru stating - “...he was denied proper legal aid, thereby depriving him of affective defence in the course of trial. In sum and substance, the contention is that the counsel appointed by the court as “amicus curiae” to take care of his defence was thrust on him against his will and the first amicus appointed made concessions with regard to the admission of certain documents and framing of charges without his knowledge. It is further submitted that the counsel who conducted the trial did not diligently cross examine the witnesses. It is, therefore, contended that his valuable right of legal aid flowing from Articles 21 and 22 is violated..”;
  3. It was announced on television (broadcast on NDTV at 8:00, Brussels time - on the 8th Februaryy, the Burkha Dutt Programme) that the wife of Afzal Guru, Tabsum, had lodged a petition with the Supreme Court of India seeking the vacation of the death penalty given the eight years delay in the execution, and that petition is still pending in the Superior Court. It is the legal argument of the Indian lawyers that the death penalty could not have been carried out while the petition was still pending;
  4. India’s legal fraternity has also advocated that the domestic legal system provides for judicial review of a decision by the Indian President when rejecting a mercy petition relating to a death sentence. Clearly, the murdered Muhammad Afzal Guru was denied this opportunity as well;
  5. It is also shocking that Afzal Guru’s wife, and his other immediate family members, were not informed of his imminent execution. In fact, his wife has indicated that she received a letter from the Indian Government in the mail, three days after the execution, on the 11th February 2013;
  6. Tabsum has also been denied the right to perform religious rites for her husband after his death, within the compound of Tihar jail, New Delhi;
  7. Amnesty International has condemned the execution of Afzal Guru "...in the strongest possible terms. This very regrettably puts India in opposition to the global trend towards moving away from the death penalty.”
  8. Human Rights Watch has described the secret hanging of Guru as: “...a major step back for India...” and stressed that “...questions need to be asked why the Indian Government executed Afzal Guru now.”;
  9. Since the execution, the entire Indian-Held Kashmir has been put under 24 hour curfew, for an indefinite period of time;
  10. The entire Kashmiri leadership, both within the occupied territory and in India at large, has been arrested or detained in their homes; and
  11. The people of Kashmir are expressing their anguish at the tragic hanging of Guru. Youths have taken to the streets to protest despite the curfew, resulting in the deaths of three young Kashmiris - Obur Mushtaq Rather of Sopor, Tariq Ahmed and Zameer Ahmed of Sumbal - by the Indian armed forces.

IHRAAM and ICHR oppose the death penalty in all cases - without exception - regardless of the nature of crime, the characteristics of the offender, or the method used by the state to kill the prisoner.

The death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state. This cruel, inhuman and degrading punishment is done in the name of justice, but it violates the right to life as proclaimed in the Universal Declaration of Human Rights.

The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in December 1948, recognises each person’s right to life. It categorically states in Article 5 that: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” We firmly believe that the death penalty violates these rights.

IHRAAM and ICHR urge UNHRC, as champions of human rights, to condemn this execution, carried out by the Government of India despite having accepted the recommendation to put moratorium on the capital punishment during its Universal Periodic Review (UPR) in the United Nations Human Rights Council 21st session in September 2012. IHRAAM and ICHR seek assistance of UNHRC in calling on the Government of India to return the body of Afzal Guru to his wife and family, in order to allow them to perform his final religious rites with dignity.

In conclusion, the Government of India must be stressed to honor its commitment made to the international community through the UPR process to place the moratorium on capital punishment forthwith.

International agreements, declarations and conventions establish the rights of citizens under the age of 18, both those who walk freely and those who have been detained for an offence. The Convention on the Rights of the Child, the Standard Minimum Rules for the Administration of Juvenile Justice, the Guidelines for the Prevention of Juvenile Delinquency and the Rules for the Protection Deprived of their Liberty are all intended to protect juveniles, but the human rights and due process that should be maintained, particularly when it comes to the procedure of juvenile detention, are not universally applied. All accused, but youths specifically, must be treated as innocent until proven guilty and brought in front of a court or equal legal authority without any unnecessary delay. Maintaining this minimal sense of security and protection of basic rights is not, however, granted across the board to detained minor in Indian Administered Kashmir.

Individuals under the age of 18 who are detained on the suspicion of a crime – a suspicion that is often based on vague facts or the result of minor offenses – are stripped of basic rights, their dignity and safety. They are subject to the whims of the authorities, authorities that, in many cases, show a complete disregard for the existing procedures and rights. 

Unfortunately the situation in Indian Administered Kashmir makes it abundantly clear that ratifying international agreements hardly implies that they will be enforced on a national, regional or local level.

Even though under Indian law individuals cannot be charged as adults until the age of 18, in Indian Administered Kashmir the juvenile justice laws provide an amendment that deems male youths over the age of 16 as adults and the age of criminality throughout the whole of India is alarming low – set at age seven. These provisions for the detention and custody of juveniles are far from recommendations made on the international level, which are intended to ensure adherence to human rights. The result for Indian Administered Kashmir specifically, implies that an array of protestors, students, activists and minors who are simply in the wrong place at the wrong time can face undue process and harsh treatment while being held pre-trial and in detention.

The numerous cases of detentions with legally unjustified or unclear backgrounds has brought much critique from the international community and amendments to the Jammu and Kashmir Juvenile Act of 1997 were promised. A year after their adoption, however, the situation has not necessarily improved.

Juvenile detention under the PSA

Despite assurances made to the international community and the United Nations, the Indian government has repeatedly tolerated infringements of the human rights of juveniles subject to criminal detention. Under the Public Safety Act (PSA), youths under the age of 18 have been held in police custody without adherence to international standards and under the questionable exceptions provided for under the act. The J&K Juvenile Act further provides exceptions for male youths, who are subject to prosecution at the age of 16. Amendments were promised and, in some cases, implemented, at least in theory. The noted dip in the number of detentions of 16 and 17 year olds between 2011 and 2012 may not, however, be the result of legal changes, but rather the falsification of age documentation.

The Convention on the Rights of the Child proclaims that the detention of minors should only occur as a last resort, instead, in Indian Administered Kashmir, it is used as a commonplace scare tactic. Teens are regularly held for disproportionately long periods of time, often detained on multiple occasions on the basis of the same – or similar – accusation, or re-arrested for a new crime while awaiting bail for their first booking. All justified as measures needed to maintain security, such standards classify any act that is perceived to be in disaccord with the Indian government’s policies to be reason enough for a detention. Individuals are taken in for questioning or what is essentially an unofficial interrogation and later moved between administrative detention centres and police stations. They are not permitted to communicate with their families, who are often left wondering or frantically searching for the whereabouts of their loved ones.

The commonality of such events, which are in direct conflict with article 9, paragraph 1 of the International Covenant on Civil and Political Right, prohibiting arbitrary arrest, detention and imprisonment of minors, are also contradictory to the right to prompt access to legal representation and other relevant assistance as stipulated in the same paragraph. The International Human Rights Association of American Minorities (IHRAAM) would also like to emphasise that the youths detained by state authorities in Indian Administered Kashmir are not held in juvenile detention centres that could offer appropriate and separate facilities for minors. This is in violation of article 37 of the Convention on the Rights of the Child, which provides that detained minors will be held in conditions that take into account their specific needs. Likewise, a distinction should be maintained between the accused and already convicted.

Falsification of documents

IHRAAM insists that despite the promised changes to the Jammu & Kashmir Juvenile act, cases of arbitrary detentions of youths under the age of 18 continue to occur. The apparent drop is merely the result of cover-up strategies that change the age of detained individuals to superficially satisfy external authorities and international pressures. Youths are still far from being protected through a comprehensive legal framework that would provide justice through the avoidance of detentions whenever possible and when it is not, that the provision of conditions that comply with international standards, such as comprehensive information as to the charges, the right to legal representation and a fair and timely trial would be applied.

Since the introduction of the relevant amendments, Amnesty International has noted at least three cases of individuals under 18, whose documents were falsified upon their detention. Mohammad Rafiq Sheikh and Murtara Manzoor Panzoo were both 17 when they were taken into custody, but their legal records inaccurately labelled them as 19. An even more drastic age change occurred in the case of Danish Farooq, who was detained for an accusation of stone pelting at the age of 16, approved for bail and then promptly re-arrested for a similar charge. In both sets of documents, Farooq was labelled as aged 19 and housed with adults, not a juvenile detention centre.

International norms and standards establish the protection and well-being of individuals held in custody, paying special attention to vulnerable groups, among them minors. Detainees must be protected from all forms of mental and physical violence, including sexual abuse, and any infringements of this basic right must be promptly investigated. They must be allowed to have communication with a legal authority and when appropriate with their families, especially for minor. IHRAAM insists that those responsible cannot avoid prosecution, nor can the Indian government continue to turn a blind eye to these offences.

Children suspected of crimes must be protected by the Convention on the Rights of the Child, which India ratified in 1992 and continues to ignore at its convenience ever since. Unless clear evidence that has not been tampered with can be found for the charge of a recognizable crime, individuals should be immediately released. In instances where the necessary evidence is found, the accused should still be afforded a fair trial, as stipulated in international agreements.IHRAAM presses for the need to not only create legal adjustments in the form of amendments but to proceed to create on the ground action that will ensure adherence to them and thereby prevent occurrences of falsification of documents and arbitrary detention of citizens at large and minors specifically. The Indian government must respond to the pressure to adequately protect children, putting special emphasis on the situation of youths in Indian Administered Kashmir, and provide for due process and prosecution of any individuals responsible for torture.

The use of excessive force in India has plagued the country’s human rights record for decades. Police officials have used real and rubber bullets during protests, participated in beatings, used electric shocks and water boarding in their attempt to solicit information, and engaged in acts of sexual abuse. With the escalation of conflict in the region of Kashmir, such brutalities have hardly ceased in recent years. Worse yet the victims were civilians. The violence inflicted upon those who are taken into official custody is also a big issue, one that is further exacerbated by the lack of appropriate access to medical care and supervision.

While Indian authorities continue to play the blame game and deny that physical harm is regularly sustained by civilians and detainees, case after case continues to make its way into the attention and consciousness of the international community. In 2012, Sajad Ahmad Dar, was held in a Kupwara jail for two months, where he did not receive medical treatment that he clearly needed. He died as a result of the lack of attention by a medical professional, which was confirmed in the coroner’s report, but the case has not been taken up by the authorities and the officers responsible for his treatment while in custody do not face any repercussions. This situation is hardly unique and what is more worrisome is that even after the intervention of international observers and non-governmental organisations, instances of maltreatment while in custody continue.

As a signatory of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, India is obliged to take measures to prevent the use of torture and excessive force within its borders and the contested area of Kashmir. Yet even though the country signed the Convention in October 1997, it has still not been ratified and accusations of torture continue. Until the Indian government provides clear definitions of torture and provisions on how to deal with such instances, it remains in limbo and continues infringing on basic human rights.

Torture while in custody

The National Human Rights Commission (NHRC) continues to receive reports of abuse cases sustained by detained individuals, annually totalling well over a thousand instances. Annually, nearly one hundred of these result in ‘unnatural’ deaths for those held in judicial custody. To add to the problem, claims of secret detention centres are consistently reported to the Asian Centre for Human Rights (ACHR), three of which are said to be in Jammu and Kashmir. These undercover institutions may explain how the NHRC managed to get away with registering only six official deaths in police custody in Kashmir since 2000.

The majority of confirmed deaths in police custody occur within 48 hours from the time the detainee was first taken in, leading to the assumption that these were the result of torture inflicted upon them by officials.  In 2011, Mudassir Bashir Shah, a 22-year-old was detained for 14 days at a Special Operations camp.  His family claims that it was here that he was first beaten by police authorities, before being transferred to the Sopore police station, where he was detained for a further six months before being released. Upon his release, the man claimed that police had forced him to write an admission and an apology for the stone-pelting that contributed to his original arrest, presumably again under the threat of violence. He was then arrested again for a further five months before his detention order was dismissed.

The Indian government conveniently ignores accusations of beatings and arbitrary repeated arrests, much in the same way it has dodged questioning into the matter by international human rights organisations. The lack of appropriate retributions and prevention mechanisms for instances of torture in police custody, create the illusion that the government is comfortable turning a blind eye. The culture of torture thus becomes endemic to the judicial and police systems of India, a matter that cannot be resolved until the Indian government admits to its past and present crimes, firmly resolving to improve the situation in the future.

Ratification of the UN’s Torture Bill

The enactment of the Prevention of Torture Bill, 2010 has not done enough to curb instances of torture and excessive force. Though considered by Indian authorities as a step toward the ratification of the UN’s Torture Convention, the Bill does not provide a comprehensive definition of what constitutes torture and suggests that excessive force would still be acceptable in some situations, without actually specifying what these situations may be.

Section 3 states:

“Whoever, being a public servant or being abetted by a public servant or with the consent or acquiescence of a public servant, intentionally does any act for the purposes to obtain from him or a third person such information or a confession which causes grievous hurt to any person or danger to life, limb or health (whether mental or physical) of any person, is said to inflict torture provided that nothing contained in this section shall apply to any pain, hurt or danger as aforementioned caused by an act, which is inflicted in accordance with any procedure established by law or justified by law.”

The Bill serves as a justification for the Indian government to not pursue torture perpetrators when it is not convenient for them and allows officials to hide from justice. IHRAAM finds such exceptions to be unacceptable and in complete infringement of the stipulations of the Torture Convention and international norms. Clear cut definitions must be made to ensure that victims and perpetrators see justice served.

IHRAAM further calls on the Indian government to carry out independent and impartial investigations of all accusations of abuses that are made against detainees or threats made against their families. Detainees should not have to fear violence of a physical, sexual or mental nature while in custody and should be eligible for the receipt of adequate medical care. If infringements do occur, findings have to be made public and those in the authorities with involvement must be held accountable for their ill-treatment of detainees.

The Indian government is also urged to co-operate with international authorities and IHRAAM encourages authorities to accept visits from the United Nations Special Rapporteur on Torture and other cruel, inhuman and degrading treatment. This is a critical step for the monitoring of infringements and ensuring that detainees are free from threat and their personal safety is maintained while in custody. IHRAAM beckons for the appropriate legal and investigative action to be taken in cases where the treatment of detainees is under question – whether this is because of accusations of torture, ill-treatment, restrictions of medical care or forced admission – in a timely and transparent manner.

Close Panel

Login

You may use your ICHR staff login or ICHR website registered user login to access.

Welcome to ICHR website - registered user interface

follow us