Thursday, 29 December 2011

The custodians of death: How NHRC scripts its own undoing by its reinvestigations

The National Human Rights Commission (NHRC) has often been questioned for the failure to effectively intervene in cases of human rights violations. Yet, in a number of cases it does intervene but is unwilling to take these interventions to a logical conclusion. The NHRC’s intervention with regard to the tortured-to-death of Ram Kumar Pal has been commendable but insufficient. On October 13, 2009, the Asian Centre for Human Rights filed a complaint with the NHRC naming the deceased, Ram Kumar Pal, who died in Hardoi district of Uttar Pradesh on October 7, 2009. Pal’s only fault was his refusal to pay a bribe of Rs 20 to sub-inspector Gyan Prakash Tiwari and constable Shiv Chander Mishra. The state government provided an illegible inquest report (IR) that stated the death was caused by shock as a result of antemortem injuries, including an abraded contusion on the back of the left elbow joint; a contusion on the back below the interior angle of the right scapula; and a contused swelling on the right lower limb extending to the upper part of the right thigh, involving the inguinal area and reaching up to the ankle joint. The autopsy further found clotted blood and musculature, and that vessel and nerves were also damaged at several places.

As usually seen, the Uttar Pradesh police denied responsibility. The Superintendent of Police (SP) of Hardoi stated that Ram Kumar injured himself at work and that an alleged criminal, Subhash Pal, who had a grudge against the police, incited a mob of 65 people to protest against the death of Ram Kumar Pal. Thereafter, the NHRC decided to investigate the case and concluded that there was serious lapse while handling the case by the authorities. The NHRC also gave enough evidence that the entire district administration colluded to cover up the culpability of the police. The NHRC recommended appropriate departmental actions against sub-inspector Babov Upadhyay, the Circle Officer and the SP for failing to discharge their duties to supervise fair investigations of the cases in order to protect the guilty policemen. It also formed charges against Anil Kumar Srivastav and Shiv Kumar for negligence in the diagnosis and treatment of the deceased and the then District Magistrate for not ordering a magisterial enquiry despite compelling evidence of unnatural death.

With regard to the prosecution of Gyan Prakash Tiwari and Chander Mishra, the NHRC recommended reinvestigation of the criminal case (No 1356/09) by the Crime Branch-Criminal Investigation Division (CB-CID). This recommendation is contradictory and absolutely uncalled for. First, the NHRC, which earlier blamed the district administration for covering up the crime, now believes that the CB-CID under the same district administration would conduct a fair inquiry. Second, the requirement of another inquiry by the CB-CID implies that the NHRC has doubts about the correctness of its investigation despite compelling evidence collected by its investigative team. Third, the NHRC fails to recognise that once an inquiry conducted by its own investigation wing is completed, it is final under the law. Section 18(a) (ii) of the Human Rights Protection Act, as amended in 2006, relating to steps during and after inquiry empowers the commission ‘to initiate proceedings for prosecution’ upon completion of inquiry. Therefore, logically, the NHRC should either place its findings before the relevant trial courts by itself after seeking permission as provided under Section 12(b) of the Act, or direct the state government to do so for prosecution, rather than recommending another investigation.

On November 2, 2011, the NHRC recommended that the UP government pay Rs 5,00,000 to the next of kin of Ram Kumar Pal. While compensation remains an important palliative measure, the NHRC should consider the following recommendations if deaths as a result of police torture are to be combated. First, since the entire district administration can collude to cover up the culpability of the police, a magisterial inquiry or police inquiry would only cover up further. In most cases, doctors under duress or conniving with the police would manipulate postmortem reports. The hapless victims or their relatives cannot challenge these findings. Therefore, the NHRC investigation remains indispensable. Second, the NHRC ought to realise that once it conducts an investigation it is considered final under the Human Rights Protection Act and must be used for prosecution. There is no need to reinvestigate the cases by the CB-CID or any other State police once the NHRC’s investigation wing has already investigated.

IT MAKES the NHRC subservient to the police and further makes NHRC’s investigation wing inferior to the state police. The NHRC orders investigation simply because the inquiries by the police are insufficient or flawed. Third, once an investigation is completed by the NHRC, the NHRC must either direct the concerned state governments to place the records before the respective trial courts or place the records after taking permission from the court. Once the court takes cognisance, it becomes subjudice and the NHRC’s role effectively ends. Fourth, the NHRC must prioritise to combat torture. It may not investigate 1,200 deaths in prison custody per year, many of which may be attributed to illness, old age, etc. But as a matter of priority, it should investigate all cases of deaths in police custody, which is close to 120 deaths per year, by its own investigative wing. Majority of the deaths in police custody take place within 48 hours of the person being taken into custody and invariably as a result of torture. If the NHRC takes these steps and informs the state governments as addition to its existing Guidelines on Custodial Deaths/Rapes, deaths in police custody can be significantly reduced over the years because the investigation by the NHRC would lead to prosecution of the guilty. But the million dollar question is whether the NHRC is serious about itself and powers and functions bestowed to it under the Human Rights Protection Act.


Background: The case of tortured to death of Ram Kumar Pal

On 13 October 2009, Asian Centre for Human Rights (ACHR) filed a complaint with the National Human Rights Commission (NHRC) against torture to death of a labourer, Ram Kumar Pal, by the police in Hardoi district of Uttar Pradesh on 7 October 2009. Ram Kumar Pal’s only fault was to refuse to pay bribe of twenty rupees. Furious with the refusal, Sub Inspector Gyan Prakash Tiwari and Constable Shiv Chander Mishra beat him in full public view which finally resulted in his death.

After the NHRC registered the case No. 30962/24/36/09-10-AD following ACHR’s complaint, the Uttar Pradesh government consistently refused to cooperate. It submitted an illegible Inquest Report after many reminders. Though illegible, the inquest report stated that the death was caused by shock as a result of ante-mortem injuries including an abraded contusion on the back of the left elbow joint; a contusion on the back just below the interior angle of the right scapula; and a contused swelling present on the right lower limb extending to the upper part of the right thigh, involving the inguinal area and reaching up to the ankle joint. The autopsy further found clotted blood and musculature, and that vessel and nerves were also damaged at several places.

The NHRC directed the Uttar Pradesh government to conduct a magisterial enquiry but it refused to comply. Rather, the Superintendent of Police (SP), Hardoi in his report dated the 5th January 2010, disclaimed any responsibility for the death of Ram Kumar Pal. The SP claimed that the victim injured himself at work and an alleged criminal named Subhash Pal, who had a grudge against the police, incited a mob of 65 people to protest against the death of Ram Kumar Pal.

The NHRC having no other option in view of the autopsy report decided to investigate by its own officers. The NHRC’s Investigation Team met the police and district officials, relatives of the deceased, the co-workers who were with the deceased when the incident took place, independent witnesses who saw him being beaten by Constable Shiv Chander Mishra and Sub Inspector Gyan Prakash Tiwari, and the doctors who treated him and conducted the autopsy.

The NHRC’s findings were startling. It found that there was “serious lapse” at every level of handling of the case by the authorities to the point that this “raises the suspicion that the entire district administration colluded to cover up the culpability of the police.” The NHRC’s investigation revealed that (i) on the morning of 07 October 2009,when Ram Kumar Pal could not pay the bribe of Rs. 20/- that had been demanded, he was ruthlessly beaten by Constable Mishra and SI Tiwari; (ii) the beating by the police led to Ram Kumar Pal’s death; (iii) the treatment given by the doctors at the District Hospital, Hardoi, was inadequate as the doctors did not properly examine and treat Pal despite having severe injuries; (iv) the police investigations into the two FIRs  respectively FIR No. 1356/09against the policemen and FIR No. 1356A/09against unknown persons who attacked Semra Chowki police outpost were farcical and the FIRs were filed to willfully cover up the crimes of the accused policemen; (v) The supervisory officers, the Superintendent of Police, Hardoi and Circle Officer, Shri Rampal Singh Sengar, approved contradictory final reports in these FIRs without going into the facts and are culpable for their lapses in supervision and that (vi) despite the compelling evidence that Shri Ram Kumar Pal had died an unnatural death, the District administration did not order a Magisterial Enquiry.

On the basis of the findings of its own investigation team, the NHRC on 21 April 2011 directed the state government of Uttar Pradesh that (i) criminal case No. 1356/09 should be urgently re-investigated by the Crime Branch- Criminal Investigation Division; (ii) disciplinary action should be taken against Sub Inspector Babov Upadhyay who conducted a fraudulent investigation of Case Nos. 1356/09 and 1356A/09 and the Superintendent of Police, Hardoi and the Circle Officer, who failed to discharge their duty to supervise fair investigations of these cases, and tried to protect the guilty policemen; (iii) departmental action should be taken against Dr. Anil Kumar Srivastav and Dr. Shiv Kumar, who were negligent in the diagnosis and treatment of the deceased on his admission at District Hospital; and (iv) departmental action should be taken against the then District Magistrate for not ordering a magisterial enquiry though he was aware of the circumstances in which the victim’s death had taken place.

The Commission also issued show cause notice to the state government of Uttar Pradesh as to why compensation should not be granted to the next of kin of the deceased, who have been left nearly destitute by his death. The Commission sought the state government’s response by 19 May 2011. However, no response was received from the State Government. A final reminder dated 24.8.2011 seeking a report by 30.9.2011 also went unheeded.

On 2 November 2011, the NHRC finally recommended to the state government of Uttar Pradesh to pay a sum of Rs. 500,000 to the next of kin of the deceased, Ram Kumar Pal and submit the status of criminal case No.1356/2009 being reinvestigated by CB CID as well as the status of disciplinary proceedings initiated against delinquent public servants by 16 December 2011.

Source: ACHR WEEKLY REVIEW, 29 December 2011,

Wednesday, 21 December 2011

Arunachal Chakmas invited to participate in Bodo Cultural event

By Tejang Chakma

The Chakmas of Arunachal Pradesh have been invited by the All Bodo Cultural Society (ABCS) to participate in the 10th Annual Conference to be held at Jwhwlao Daimalu Mini Stadium, Daimalu in Gohpur, Sonitpur, Assam. The three-day cultural event will starts from 6 to 8 January 2012.

The cultural event being organised by ABCS will be graced by eminent guests like Mr. Nabam Tuki, Hon’ble Chief Minister of Arunachal Pradesh, Mr Takam Sanjay, Hon'ble Member of Parliament (Arunachal Pradesh) and Mr Nabam Rebia, Hon'ble Member of Legislative Assembly (14-Doimukh Constituency, Arunachal Pradesh), among others.

The event will witness various cultural programmes by different tribes. For the Chakmas, it is a matter of great honour to be invited to this cultural event. The cultural event provides an excellent opportunity to build cultural relationship with the Bodo people of the North East in particular and to showcase the Chakma culture and identity to the world in general.

It is reported that the Chakmas of Arunachal Pradesh have accepted the invitation and sending a cultural troupe to participate in the event.

Tuesday, 13 December 2011

Diyun to host Volleyball tournament from 20 December

By Tejang Chakma

The Department of Sports and Youth Affairs, Government of Arunachal Pradesh will be organising a Circle-level volleyball tournament at Diyun under Changlang district from December 2011.

All the schools and clubs under Diyun circle can participate in the event. 15 December is the last date for joining and the fixture will be drawn two days later.

It is stated that the Chakma students of Government Secondary School Diyun are good in games and sports. This is a golden opportunity for the Chakma students of Diyun school to exhibit their sporting talent.

Saturday, 10 December 2011

Human Rights Day: No Meaning for the Chakmas of Arunachal

By Tejang Chakma

Image: Cooperation for Development
Every year, December 10 is observed as International Human Rights Day. Across the world, the day is celebrated to mark the anniversary of the Universal Declaration of Human Rights (UDHR) established in 1948. In the Preamble, governments commit themselves and their people to progressive measures which secure the universal and effective recognition and observance of the human rights set out in the UDHR.

In India, there is nothing to rejoice about. Just a day before, at least 90 people have lost their lives when a fire broke out in a hospital in Kolkata while accessing medical care. The other day, the Government of India exposed its intent to curb the internet freedom.

Image: Hope Development Org
The overall status of human rights remained dismal across the country. The plethora of laws for the protection of human rights is only in paper. In particular, vulnerable groups like Dalits, indigenous/tribal peoples, women, children, minorities, continued to face gross human rights violations.

In Arunachal Pradesh, the Chakmas and Hajongs are yet to realise their human rights. Even after more than four decades since they were settled in the state, they remained stateless till date. In the absence of a permanent political settlement of the Chakma and Hajong issue, the Chakma and Hajong community continue to be deprived from their fundamental rights.

In a welcome development, on 10 August 2010 the Ministry of Home Affairs (MHA) constituted a Four Party Committee consisting of the MHA, the state government of Arunachal Pradesh, the All Arunachal Pradesh Students’ Union (AAPSU) and the Committee for the Citizenship Rights of the Chakmas and Hajongs of Arunachal Pradesh (CCRCHAP) to find a lasting solution to the long pending issue. However, even after more than a year not a single meeting could be held.

The lack of citizenship has been the primary reason for their pathetic socio-economic conditions and lack of development. 

Article 26 of the UDHR says “Everyone has the right to education.” However, for the Chakma children accessing education, in particular secondary education, is difficult due to lack of high schools.  During this current academic session, at least 88 Chakma students are not given admission to secondary schools after passing out elementary schooling.

Consequently, the right to education of these Chakma children is blatantly violated, resulting in their future being uncertain.

The Human Rights Day comes and goes, but the wait for their rights is unending

Friday, 9 December 2011

BURMA'S ROAD TO DEMOCRACY: China v West in Burma

Immediately following the historic visit of United States Secretary of State Hillary Clinton, Burmese President Thein Sein signed a bill on December 2 that gives the Burmese the right to peaceful protest under specified circumstances.

Prior to the meeting with Mrs Clinton, pro-democracy leader Aung San Suu Kyi told the Associated Press on November 30 that she has not changed her position supporting sanctions against her country's military-backed government.

After the visit Mrs Clinton, however, stated that apart from exchanging ambassadors, the US would relax some restrictions on international financial assistance and development programmes in Burma. This would allow the International Monetary Fund and the World Bank to assess the needs of Burma.

Whether the Western sanctions imposed on the junta in the 1990s had any significant impact on Burma's political process beyond symbolism, is debatable. At the time when Burma needed hard foreign currency, the Western sanctions were offset by business with China, Singapore, Thailand and India.

If the sanctions were not effective, it is equally pompous to claim that the so-called "constructive engagement" without naming and shaming the junta as practiced by India, had any impact on Burma's democratic political process. India has been desperately mimicking China - a fact abhorred by the pro-democracy activists - even when the Association of Southeast Asian Nations became increasingly vocal for the release of Mrs Suu Kyi and the need for national reconciliation.

If Mrs Suu Kyi were to be under house arrest today, India would still be, quite deplorably, doing business as usual with the junta.

The junta's change of heart for democracy has more to do with Burma being reduced to another Chinese province, than the junta reeling under sanctions or a strong pro-democracy movement inside ethnically divided Burma. The junta's choreographed democracy must be analysed from a historical perspective.

One of the despicable measures taken by Gen Ne Win following the coup of 1962 was to seize the properties of Indian-origin Burmese who had been living in Burma for generations, by nationalising private property in 1964. Over 300,000 ethnic Indians were also expelled. Gen Ne Win feared domination by the Indian-origin Burmese in the administration and major business enterprises.

About 50 years later, Burma finds itself in the same situation, but now with the Chinese. In the last 20 years, millions of Chinese have moved into Burma from neighbouring Yunnan and other provinces. From Burmese timber and gems to mines, oil and gas, the Chinese control everything. Mandalay today looks more a city of China than Burma, with Chinese-owned hotels, guesthouses, restaurants and small businesses. The Chinese festivals have become an integral part of the city's cultural calendar. The huge investments made by China mainly benefit itself. The Myitsone Dam being built at the cost of US$3.6 billion in the Kachin State and suspended since September 30, was supposed to provide electricity to China for 50 years despite severe power shortage in Burma.

As the Burmese have been pushed to the margins, resentment against the Chinese has become all pervasive.

However, the junta cannot afford to expel the Chinese the way it expelled the Indians. It desperately needs to counter-balance China. Not surprisingly, while Burmese Foreign Minister Wunna Maung Lwin visited Beijing on October 10 to explain the cancellation of the Myitsone Dam at the cost of a hefty cancellation fee of US$42.5 million, President Thein Sein launched his three-day state visit to India from October 12.

India alone cannot be the counter-balancing alternative to the Chinese domination built over 20 years of almost monopolistic access, given that it was only China that could protect the junta from the United Nations Security Council's radar. China's direct investment had risen to $15.5 billion in March 2011 from $12.3 billion at the end of 2010. In comparison, India's investment in Burma amounted to $189 million as of June 2011 since the junta opened to foreign investment in 1988. While China invested in every sector, India, out of US$189 million, has invested $137 million in the oil and gas sector. India currently ranks 13th in Burma's foreign investors' line-up. Bilateral trade between China and Burma in 2010 was about $4.4 billion and during the first quarter of 2011 it was $1.6 billion. In comparison, Burmese-Indian bilateral trade reached $1.071 billion in 2010-11, way behind China, Singapore and Thailand. While China plans to build railway lines up to Kyauk-Phyu port in the Arakan province by 2017, India has no plans to connect even Aizawl in Mizoram with a railway.

Therefore, the junta had no other option but to open up Burma to the world which boycotts it. This called for meaningful democratic reform, including the immediate release of at least 2,000 detained political prisoners and the holding of free and fair by-elections for the 48 seats in the coming months, in which Mrs Suu Kyi herself will contest.

At the bilateral talks held in capital Naypyidaw on December 6, Japan stated that it intends to resume full-fledged Overseas Development Aid to Burma if the government improves its democratisation and human rights situation. If the military-backed government frees all the political prisoners and allows free and fair by-elections in the coming months, the US and the European Union must consider lifting the sanctions as the key to glasnost in Burma.

Burma needs aid but it equally needs foreign investment. Sanctions might not have had any impact to oust the junta but the sanctions were instrumental in preventing Western investment into Burma that could have only strengthened the junta. The sanctions have created a situation where Burma has been effectively reduced into a Chinese province; and this also triggered the democratic reforms by the recalcitrant junta. It is one thing to impose sanctions; it is another thing to counter the entrenched position of China, especially when the spotlight is on the same natural gas resources, including proven recoverable reserves of 18.012 trillion cubic feet estimated offshore and onshore gas and 3.2 billion barrels of recoverable crude oil reserve.

It is essential to ensure a clear roadmap to democracy before Japan and the West join the rat race for exploitation of the natural resources of Burma.

By – Suhas Chakma, Director, Asian Centre for Human Rights. Available at:

Wednesday, 7 December 2011

NHRC issues notice to Arunachal Pradesh on denial of admission to Chakma students

By Tejang Chakma

The National Human Rights Commission (NHRC) has issued a notice to the state government of Arunachal Pradesh seeking a report on the issue of denial of admission to Chakma students to secondary schools in Changlang district in the current academic session.

Taking cognisance of a complaint filed by leading human rights organization, Asian Centre for Human Rights (ACHR), the NHRC has asked the Chief Secretary of Arunachal Pradesh to submit a report within two weeks.

At least 88 Chakma students, including more than 25 girls, are yet to be given admission to class IX in secondary schools under Miao Sub-Division in Changlang district in this academic session. The admission process started in July this year. The students have been denied admission despite clear orders from the higher authorities to the school authorities to admit these students to avoid academic loss.

But, the school authorities refused to admit these students on the ground of overcrowding, lack of infrastructure, lack of adequate number of teachers, etc in the schools.

This problem has been going on for several years. Out of the 88 students, 10 students are of previous academic session (2009-2010) who have been waiting for admission since then after passing out from their village elementary school.

As a result, the right to education of the Chakma children is blatantly violated due to denial of admission, resulting in their future being uncertain.

Tuesday, 6 December 2011

Tripura: One Chakma killed in road accident

By Tejang Chakma

On 2 December 2011, one person belonging to the Chakma community was killed when an unidentified vehicle hit a motor bike at Sidangcherra near firing range under Pecharthal police station in Tripura's North district.

Around 12.30 pm, one unidentified vehicle dashed behind the motor bike (Hero Honda Splendor bearing No.TR-02-B-6648) of the victim at Sidangcherra near firing range while he was coming towards Kumarghat from Pecharthal, police said.

The victim has been identified as Buddadha Chakma, aged 48 years, son of Lt. Sindhumanya Chakma of Bash Bagan under Kumarghat police station. The victim who is reported to be the Head Master of Puangcherra J.B. School sustained grievous injury and died on the spot.

The police claimed the victim died due to rash and negligent driving on the part of driver of the unidentified vehicle. A case was registered at the Pecharthal police station and efforts are on to trace the driver of the vehicle.

Buddadha Chakma was the second Chakma who died in road accident under Pecharthal police station in a span of 36 days. Earlier, Kabi Ranjan Chakma (40 years) of Lamba Bill under Manu police station died in a suspected road accident on NH-44 near the Pecharthal bridge on 27 October 2011.

Monday, 5 December 2011

Six Chakmas kidnapped by NLFT returns unhurt in Tripura

By Tejang Chakma

Eight tribals including six Chakmas, who were kidnapped by an insurgent group in Tripura, have returned home unhurt on 30 November 2011.

The tribals were kidnapped by the outlawed National Liberation Front of Tripura of Biswamohan Debbarma faction at gunpoint from Debendra Karbari Para, 16 km from the Chhamanu police station in Dhalai district of Tripura on 18 July 2011 and taken them to their hideout in Bangladesh. All of them are jhum cultivators and kidnapped for ransom.

The Tripura Police have confirmed the return of the tribals in a press release. According to the press release, the tribals have fled from the captivity of the insurgents in the afternoon of 30 November 2011. All of them have reported to the Chhamanu police station and were being interrogated by the police.

The names of the eight tribals are given below:

1) Arun Chakma (35 years), son of Lt. Subal Chakma of Debendra Karbari Para;
2) Ganja Chakma (45 years), son of Kaluram Chakma of Debendra Karbari Para;
3) Sudhyajoy Chakma (35 years), son of Debendra Chakma of Debendra Karbari Para;
4) Ratanjoy Chakma (27 years), son of Lt. Subal Chakma of Debendra Karbari Para;
5) Baishakh Chakma (30 years), son of Ratnababu Chakma of Gandhi Karbari Para;
6) Sumanta Chakma (30 years), son of Ratnababu Chakma of Gandhi Karbari Para;
7) Kahindra Tripura (35 years), son of Harendra Tripura of Khetricherra; and
8) Falenjoy Tripura (25 years), son of Ram Singh Tripura of Khetricherra

All the returnees, who crossed from Chittagong Hill Tracts (CHT), Bangladesh to Raishyabari, had to walk around 70km through dense jungle before reaching Chhamanu. They reportedly managed to flee when the insurgents had gone out of the camp. The insurgents reportedly treated them like slaves and made to work in the jhum fields to grow food for them.

Sunday, 4 December 2011

AG`s opinion on AFSPA is non-est in law

The proposal of Chief Minister Omar Abdullah for removal of the Armed Forces Special Powers Act (AFSPA) from certain parts of Jammu and Kashmir has exposed the fraught being played by the Central government playing on the basic tenet of the constitution i.e. federalism. As the Ministry of Defence opposed Chief Minister Abdullah’s proposal tooth and nail, the Ministry of Home Affairs in order to extricate itself from the controversy sought an opinion from the Law Ministry. On 18 November 2011, Attorney General Ghulam E. Vahanvati informed the MHA that the Governor of the State is the final authority for declaration and revoking of the AFSPA as per Section 3 of the Act. The AG based his opinion on the Supreme Court Judgement of 1997 that upheld constitutional validity of the AFSPA in the case of the Naga Peoples Movement for Human Rights Vs Union of India.

The AG’s opinion is all but absolute mis-interpretation of the SC judgement in the case of NPMHR Vs Union of India. The SC judgment did not examine as to whether it is the Governor, who is legally bound to operate on the advice of the State’s Council of Ministers, or the State Government, which is the actual authority for declaration or revoking of the AFSPA. The constitutional validity of the AFSPA was examined in the specific context of whether the Act is violative of the Constitution because ‘public order’, which is addressed in disturbed areas through deployment of the Central forces, is a State subject. The SC upheld that the AFSPA “is not a law in respect of maintenance of public order falling under Entry I and List II.” The Court also held that the AFSPA “does not displace the civil power of the State by the armed forces of the Union and it only provides for deployment of armed forces of the Union in aid of the civil power.”  The Court further clarified that “The expression ‘in aid of the civil power’ in Entry 2A of List I and in Entry 1 of List II implies that deployment of the armed forces of the Union shall be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order which has necessitated the deployment of the armed forces in the State”. Therefore, the SC judgement reiterated the primacy of the State government and did not justify any discretionary power of the Governor as being interpreted by the AG. If there is no civil power in the State, Governor’s discretion would mean declaration of emergency and/or President’s rule under 356 of the Constitution. 

The AG has further failed to appreciate that the AFSPA cannot be considered as a stand-alone Act. The AFSPA comes into effect only after an area is declared “disturbed” under Section 3(1) of the Disturbed Areas (Special Courts) Act which is unequivocal about the role of only the State Government. Section 3(1) states “where a State Government is satisfied that- (i) there was, or (ii) there is, in any area within a State extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities, it may, by notification in the Official Gazette, declare such area to be a disturbed area”. There is no reference to the role of the Governor under the Act and once the “disturbed area” notification is revoked by the State government, the AFSPA simply goes!
Major political parties such as the Bharatiya Janata Party, the AIADMK and the Trinamool Congress have been opposing the Communal Violence Bill on the ground that it poses a threat to federalism. However, these political parties have maintained silence on the opinion of the AG, while the BJP on record opposed the revoking of the APSPA from J&K.

It is essential to bear in mind that the Disturbed Areas (Special Courts) Act was enacted in 1976 to provide for speedy trial for certain offences through the establishment of Special Courts. While Special Courts have seldom been established, the Act has been abused discriminatorily against the States ruled by the minorities. At present, the areas declared disturbed are the entire  State of Manipur  (except Imphal Municipal area), Nagaland and Assam, Tirap and Changlang  district of Arunachal Pradesh, 20 km belt in the States of Arunachal Pradesh and Meghalaya having common border with Assam and 20 out of 22 districts in Jammu and Kashmir. The most curious case is Tripura which in September 2011 further notified 34 out of 70 police Stations as fully disturbed and six police stations as partially disturbed. According to the Tripura Police, 32 insurgency related incidents took place from January 2010 to September 2011 in which only one civilian and two security forces were killed. Though the Naxal affected States have been witnessing far more violence, the Centre has not declared areas from these States to be disturbed as they are ruled by the powerful State governments.

The declaration of certain areas to be ‘disturbed’ has effectively come to mean bringing these areas effectively under the Central rule without declaring the same publicly or under the Constitution of India. Those opposing the Communal Violence Bill need to take a principled stand. After all, the Disturbed Areas (Special Courts) Act in essence addresses the very issues of the Communal Violence Bill and not the insurgency or national security problems. If the Central rule can be imposed through the backdoor by abusing the Disturbed Areas (Special Courts) Act, there is no reason as to why the Communal Violence Bill would not be invoked for the same. Armed conflicts are increasing by day and time has come to lay down the law clarifying the role of the Centre vis-à-vis the armed conflicts including the Naxal conflict. Ethnic origin and religious belief must not be seen to be the criteria to judge the competence of the leaders or Indian-ness of the people they govern.

By – Suhas Chakma, Director, Asian Centre for Human Rights

Saturday, 3 December 2011

RTI: Accessing info difficult for applicants staying outside Arunachal Pradesh

By Tejang Chakma

The Right to Information (RTI) Act 2005 came into force in Arunachal Pradesh along with the rest of the country on 12 October 2005 after 120 days of its enactment. The State Government framed the “Arunachal Pradesh Right to Information Rules 2005” which was notified vide No.OM-43/2003 dated 15/09/2005 for smooth and effective implementation of the provisions of the RTI Act. Subsequently, many amendments were made to the Rules. 

There is no denying the fact the RTI Act has brought marked improvement in the functioning of state government departments. In 2009, the State Information Commission became the first in the country to issue an arrest warrant against an erring Public Information Officer (APIC No. 42/2009, Complainant: Tago Pai Camdir). In fact, this led to the State Information Commission winning the RTI Awards 2009 in the Best Information Category.

This writer has filed several applications from various departments and received the information in time.  In some instances, the information was provided without charging further fee as cost of documents when the number of pages to be provided is few.

However, it has become difficult for applicants especially who reside outside the state to access information in recent times. This is due to the strange RTI rules in particular the “mode of charging the fees”. According to the Rules, an applicant has to deposit the fee in way of “Treasury Challan” to the “Head of Account 0070.” No other mode of payment is entertained such as Indian Postal Orders (IPO) and Bank drafts. It is almost impossible for someone in Delhi to get a Treasury Challan. Treasury Challan is not easily available and it is time consuming. The condition of the State Bank of India branches in Delhi is well known.

Consequently, this writer has failed to submit fees for information in a number of applications and literally had to stop seeking information under the Act.

It is unfortunate that despite many amendments made to the Rules this important issue was not addressed. The state government needs to immediately amend the Rules to include other mode of fees such as IPOs, bank drafts, etc to make it more people friendly. 

Thursday, 1 December 2011

Minority fund meant for the Chakmas remained unused in Arunachal

By Tejang Chakma

In 2008, the Government of India introduced Multi-sectoral Development Programme (MsDP) to address the development deficits in the minority concentrated districts across the country. The Ministry of Minority Affairs selected 90 Minority Concentrated Districts (MCDs) in 20 States and Union Territories including Arunachal Pradesh. In Arunachal Pradesh, seven districts namely East Kameng, Lower Subansiri, Changlang, Tirap, Tawang, West Kameng and Papumpare have been selected as MCDs.

The Changlang district falls under “A” category as both the socio-economic and basic amenities parameters are below the national average. Minority population is about 52.53% of the total population of the district according to the 2001 census. The Buddhists constitute 34.1% in the district. Majority of the Buddhists are Chakmas who resides in four circles namely Diyun, Miao, Kharsang and Bordumsa in the district.

In August 2010, the Empowered Committee of Ministry of Minority Affairs approved the construction of buildings of Government Secondary School, Diyun for a total cost of Rs.50 lakh under the MsDP. The construction included replacement of bamboo structure with Semi Permanent Type building into concrete brick buildings from classes 1 to X.

The Ministry released the first installment of the Central share (90%) in December 2010. The fund was received by the state government in January 2011. However, the construction of infrastructure of the school is yet to start. The construction works could have been undertaken during the school vacation.

Bamboo structure of a classroom of Diyun Govt. Sec. School
The condition including infrastructure of the school is dismal. The school is the only secondary level school for the entire Chakma population of Changlang district. As a result, overcrowding remains a recurring problem at Diyun school, thereby seriously affecting the quality of education.

The projects under the MsDP are supposed to be completed during the 11th Five Year Plan period. The state government will have to return the fund if it remained unused. However, it is highly unlikely that the construction would be completed during this period as not much time is left.

The construction of the buildings could have solved half of the problem in the school.

The question is bound to arise. Are these minority students denied the benefit of the minority fund because they belong to the Chakma community?