Morgan Institute for Human Rights

I. Introductory Background and Context

  1. Political Crisis

    2. Introduction,
    Opposition Challenge,
    Reform Pressure

  2. Secessionist Movements in Two States

    3. Punjab,
    Kashmir

  3. India's Legal System

    4. Anti-Terrorism Laws,
    National Remedies

  4. International Human Rights

    5. UN Treaties,
    Geneva Conventions,
    Observers

Introduction to the Political Crisis

The devastating news reached Prime Minister P. V. Narasimha Rao as he was leaving Madurai for New Delhi in August 1995: Sikh separatists had assassinated the Punjab Chief Minister in a terrorist bombing that killed 15 and wounded 23.

Minister Beant Singh, a Sikh, had become a critical ally. His elected Congress party government launched Rakshak ("Protector") II, a campaign of extreme repression that until today's bombing had appeared to crush the separatists. Now Rao confronted major secessionist threats in both Punjab and its northern neighbor. Muslim terrorists in Kashmir had just embarrassed the central government by seizing five Western hostages. The group Al Faran beheaded a Norwegian national when Rao refused to release Muslim political prisoners. An American, two Britons and a German national remained captives.

Map of Punjab, Jammu, and Kashmir

Opposition Party Threats

The crisis would sorely test Rao's besieged Congress party, his government's narrow control of Parliament, and India's international reputation. Rao became Prime Minister in 1992 following the assassination of Rajiv Gandhi. He had instituted free market economic reforms that opened India to more foreign investment as well as legal reforms to enhance respect for human rights.

Congress initially fared very well in state elections. By 1995 privatization had caused job losses. Two Hindu nationalist opposition parties, Bharatiya Janata Party (BJP) and Shiv Sena made anti-Muslim appeals that contributed to Congress defeat in five out of six state elections. Congress Party dissidents demanded the Prime Minister's resignation. A rebel faction elected a rival party leader, and the leadership expelled Rao's chief rival from Congress (I). If the government failed to satisfy Hindu nationalists demanding a firm response to the Punjab assassination, the opposition might easily oust his government in national elections next March.

Pressures for Reform

Yet five years of repressive counterinsurgency measures had triggered moral outrage at police misconduct without improving security. Indian civil rights organizations and international critics had publicized extensive torture and summary killings by security forces. The U.S. State Department and influential non-governmental organizations exposed brutal counterinsurgency measures in reports that might discourage foreign investors. Two Muslim Ministers threatened to quit the cabinet unless the government repealed repressive legislation that violated minority rights.

The Janata Dal party and some non-Congress state governments opposed repressive anti-terrorist measures. Legal reform might help undermine support for the terrorists, retain the non-Hindu votes Congress needed for reelection, and restore India's international reputation as a liberal democracy.

Sikh Rebels in Punjab

Sikh separatists have sought Punjab self determination since the early 1980s. During the "green revolution," Punjab became the bread basket of India. Sikhs comprise about 60 per cent of Punjab's 22 million people; many favor independence from India, while others have strongly opposed secession. The militant Sikh rebellion for an independent "Khalistan" has cost the lives of Prime Minister Indira Gandhi and an estimated 10,000 others. After armed militants led by a charismatic Sikh preacher fortified the Golden Temple at Amritsar, terrorist attacks on policemen and a bus bombing triggered the imposition of President's rule. In 1984 after the army stormed the Golden Temple, her Sikh bodyguards retaliated by assassinating the Prime Minister; vengeful mobs in New Delhi then killed thousands of innocent Sikhs.

Parliament responded with tough security laws. The U.S. State Department and international human rights NGOs have documented charges that Punjab authorities deliberately executed suspects and then falsely reported the deaths as "encounter" killings.

During 1994, 76 alleged Punjabi militants were reportedly killed in armed encounters, including only 4 in the last 6 months of the year, compared with more than 583 such killings in 1993. No police or other security personnel were killed in such encounters in 1994. The fact that no police died underscored the implausibility of police claims that militants were killed in "crossfire".1

The Punjabi police also stationed teams in eight other states where they kidnapped and occasionally executed suspected Sikh militants, despite the objections of local officials. Punjab Police Chief K.P.S. Gill reportedly told journalists that "the purpose of having such teams has been to trace, identify, and kill top militants."2 Amnesty International reported on a team execution near Calcutta.

Early in the morning of 17 May, a party of khaki-clad Punjab police reportedly raided the home of Bashir Ahmed and Rani. The couple who were both sleeping were shot dead in their bed. The police then bundled their bodies into a van and left. The West Bengal police had not been informed of the raid beforehand and were informed about the incident afterwards.3

With order restored by 1994, critics demanded government investigation and prosecution of police charged with wanton killing. Instead, journalists exposing violations and defense lawyers representing accused terrorists were targeted. The Supreme Court investigated police kidnapping of four defense lawyers.

Muslim Separatists in Jammu and Kashmir

The conflict over Punjab's northern neighbor, Jammu and Kashmir, dates to Britain's partition of India and Pakistan at independence in 1947. Although Muslims constituted a majority in the state, most of that territory became part of predominantly Hindu India. Predominantly Muslim Pakistan occupies a northwestern section of Kashmir beyond a contested border established by war and monitored by the United Nations.

Since 1989 Kashmir's Muslim separatists have escalated their battle to join Pakistan or to become independent. The death toll has steadily mounted with claims of brutal atrocities on both sides. The government estimates that over 20,000 have died, including nearly 700 members of its security forces. Numerous pro-Pakistani groups obtain weapons through an Afghan arms pipeline. An estimated 100,000 Hindus fled to refugee camps in 1990.

Terrorist kidnappings exceeded 100 in early 1994. The Jammu and Kashmir Liberation Front kidnapped the Home Minister's daughter in 1989 to obtain the release of five prisoners. "In addition to political killings and kidnappings, militants engaged in extortion and carried out acts of random terror that left hundreds of Kashmiris dead. A bus bombing near Jammu on July 16 killed 6 and left 27 injured" in 1994.4

Unwilling to trust state police, the government has deployed nearly 350,000 troops from the army and two paramilitary groups, the Border Security Forces (BSF) and the Central Reserve Police Force (CRPF). The security forces have detained thousands of suspects without trial, and hundreds taken into custody did not survive.

Amnesty International published details of 706 deaths in custody between mid-1992 and 1994 with extensive documentation of lethal torture--electric shock, rape, beatings, and mutilation. The Governor of Kashmir Krishna Rao conceded: "I genuinely feel bad if torture leads to death.. . . . Where is the need to kill a militant if he is totally defenseless? I've told the forces to be careful. Custodial deaths will hurt my cause, so I have a vested interest in putting an end to them."5

Conditions deteriorated in May 1995 after the destruction of the shrine of Sheikh Nuruddin Wali and the adjacent mosque at Charar Sharif in a pitched battle between security forces and rebels. The central government postponed mid-year local elections that had been planned to end President's rule. The Hizbul Mujahadeen detonated a bomb outside a bank in the summer capital Srinagar that killed 13 and wounded 25.

India's Legal System

Under Article 356 of India's constitution the federally appointed governor can recommend the dismissal of a state's elected legislature and the imposition of direct rule from the center when "governance of the state cannot be carried out in accordance with the constitution." In both states the central government suspended the elected state government and imposed President's rule.

Anti-Terrorism Laws

The Terrorist and Disruptive Activities (Prevention) Act: (TADA) weakens safeguards against torture and mistreatment of detainees by allowing high officials to use confessions they consider voluntary. Authorities in all but three of India's states used TADA to arrest over 65,000 individuals, but fewer than 100 were convicted.6 Under The Armed Forces (Punjab and Chandigarh) Special Powers Act army and paramilitary personnel may shoot to kill.

Emergency legislation adopted by India's Parliament grants immunity to security officers empowered to detain and kill suspected terrorists. The Jammu and Kashmir Public Safety Act (PSA), authorizes up to two years of preventive detention for acts prejudicial to state security or public order, promoting feelings of enmity, hatred or disharmony on grounds of religion or region. Authorities may withhold information based on their assessment of the public interest.

The Armed Forces (Jammu and Kashmir) Special Powers Act, empowers army and paramilitary forces in disturbed areas
"If . . . it is necessary so to do for the maintenance of public order . .[to] . fire upon or otherwise use force, even to the causing of death against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire arms, ammunition or explosive substances.7
Unless previous permission has been obtained from central government: "no 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 conferred by this Act."

A Jammu and Kashmir High Court judge complained:
The Police agencies and the administration appear to have thrown to winds the rule of law. All sorts of illegalities are being committed by them . . . Hundreds of cases have been brought to my notice where the detenues are in illegal detention. Despite the strong directions of this court they are not be[ing] released . . . Scores of cases are pending wherein the detenues have been allegedly done-away with after arrest. . . . In short, there is total break down of law and order machinery.8

National Remedies

Several reforms have addressed human rights concerns. In 1993 Parliament adopted the Protection of Human Rights Act providing for a National Human Rights Commission (NHRC). The Commission has no authority to investigate the military and paramilitary, but can request the government to examine complaints. The NHRC did request a report from the government on the shooting of unarmed demonstrators in Bijbehara in October 1993. A magisterial inquiry recommended prosecution of 12 BSF members for the killings. Officials are conducting another investigation into reprisal killings by the BSF in Sopore in January 1993. Kashmir's Minister of State for Home Affairs, Rajesh Pilot has directed that relatives be informed within 24 hours of an arrest.

The judiciary also became more engaged in 1994.

The Supreme Court directed active investigation and prosecution of custodial deaths and other cases of police abuse and negligence. In one case, murder charges were brought against Punjab policemen for a faked encounter killing. In another case, a High Court judge in July recommended murder charges for 11 Punjab policemen in a faked encounter killing and compensation to the victim's family.

In September the Supreme Court strongly criticized the Punjab police, including the Director General K.P.S. Gill, for inaction following the abduction by police in 1991 of 7 members of a family, none of whom has been seen since. In October the Supreme Court ordered the prosecution of 58 police officers accused in the 1991 murders of 10 Sikh youths in Uttar Pradesh. The NHRC is investigating 25 cases of suspected faked encounter killings.9

In July a Ministry of Defense spokesman announced in Srinagar that a court-martial had sentenced two army enlisted men to 12 years' rigorous imprisonment for raping a Kashmiri woman 1 month earlier. The announcement broke with the Government's previous policy of not announcing the disciplinary sentences handed down to security forces personnel in Kashmir.10

Hoping to win back disaffected Muslim voters, the government allowed objectionable provisions of The Terrorist and Disruptive Activities (Prevention) Act: (TADA) to lapse in May 1995. An amended criminal bill severely restricts preventive detention and revokes authority to use coerced confessions.

UN Treaties

Since the UN adopted a Universal Declaration of Human Rights in 1948, issues once considered local have become internationalized. India has ratified two treaties which comprise the International Bill of Rights. Ratifying governments promise to conform domestic law with the International Covenant on Civil and Political Rights and to submit reports to the UN Human Rights Committee.

That covenant forbids torture and summary killing in all circumstances, but creates emergency exceptions to guarantees of due process, free speech and other political liberties. Article 9 requires that detainees be informed of reasons at the time of arrest, and obliges the government to bring detainees to a court which determines the lawfulness of detention. When an emergency threatens the life of the nation, a government may formally derogate from covenant guarantees of due process and use preventive detention, within limits.

India has never issued a formal derogation notice. After reviewing India's report in 1989, experts on the Human Rights Committee suggested that India's emergency security laws violated the government's obligations under the covenant.

An optional protocol to the covenant allows states to grant their citizens a right to file individual complaints before the Human Rights Committee. India has not ratified that optional protocol. Nor is India a party to the UN Convention Against Torture that also allows individual petitions. Torture clearly violates the express prohibition of the political covenant, a peremptory norm of customary international law, as well as the laws of India. Mistreatment nonetheless occurs most often during the prolonged incommunicado detention permitted under Indian security measures.

In 1948 the UN Security Council called for a self determination plebiscite in Kashmir.11 India has refused on the grounds that Pakistan failed to withdraw its armed forces.

Geneva Conventions

India has also ratified the four 1949 Geneva Conventions whose Common Article 3 governs non-international armed conflict within a national territory. The law expressly requires humane treatment of detainees, prohibits torture and cruel treatment, as well as executions. The International Committee of the Red Cross (ICRC) is responsible for implementing the convention by making prison visits to interview detainees and preparing confidential reports for the government. The ICRC functions as a humanitarian intermediary that assists families in locating prison relatives. In order to maintain access to detention centers in all countries, the ICRC does not issue public findings of government misconduct but employs quiet diplomacy to encourage compliance.

International Observers


Selective Admission
Journalists may travel freely in both states and have published reports strongly criticizing the government, as have Indian civil rights groups. The government also invited foreign Ambassadors to tour the troubled region. The U.S. State Department's annual country reports on human rights have sharply criticized the government for human rights abuses. Two nongovernmental organizations, Amnesty International and Human Rights Watch also publish annual country surveys with sections on India that detail gross violations.

The government would not allow any UN observers or international NGOs to visit until 1994. The International Committee of the Red Cross and the International Commission of Jurists both conducted missions to Kashmir. The government subsequently invited the ICRC to help train security forces, but denounced the ICJ mission report for its support of self-determination in Kashmir. The UN High Commissioner for Human Rights visited both territories in 1995; Jose Ayala Lasso praised the government's new openness but noted serious concern.


Significant Exclusion
The government continues to deny requests from Human Rights Watch and the UN Human Rights Commission Special Rapporteurs on Disappearances and Summary and Arbitrary Executions. The UN special rapporteur on religious intolerance was invited to visit. Amnesty International was allowed to visit prisons in Bombay, but has been refused entry to Punjab and Kashmir.

Human Rights Watch obtained first hand information by sending observers as "tourists," but Amnesty International has not circumvented the government restriction. Both organizations have published extensively detailed accounts of atrocities committed by security forces as well as rebel terrorists. Their reports name names with supporting evidence. Since 1991 HRW has published six reports on Kashmir and four on Punjab. Amnesty International has produced five reports. Human Rights Watch charged that the brutal counterinsurgency campaign made murder, torture, and disappearances official policy.12 The Government's response to the Amnesty report on disappearances in Kashmir and Punjab shed little light on cited cases. The response blamed Pakistan and militant groups for creating circumstances that "created possibilities of what may be perceived as excesses."13


II. The Prime Minister's Challenge

In response to the assassination, the Union Cabinet will meet in New Delhi tomorrow morning, followed by an evening session of the Congress party Working Committee. All will readily accept a national mourning period and a comprehensive investigation to capture the bombers. What additional measures should Rao recommend and why? You can earn a perfect score of 100 by correctly selecting from the check-lists below the conflicting moral, legal, and political considerations that Rao must evaluate before reaching a decision.

  1. Which choices could Prime Minister Rao make to satisfy:

    2. (check one option for each item)
    Inter-
    national
    critics    		 Hindu
    nationalist
    voters
    1. Grant amnesty to security personnel for human rights violations
    2. Favor P.G.S. Gill as Prime Minister of Punjab state
    3. Ratify the convention against torture and allow individual petition
    4. Formally derogate from the Covenant on Civil and Political Rights by declaring an emergency that threatens the life of the nation
    5. Dispatch additional troops to secure India's border with Pakistan
    6. Invite the U.N. rapporteur on Torture to visit Kashmir and Punjab


  2. Which arguments could the Prime Minister use to justify:

    3. human
    rights
    reform    		 emergency
    anti-terrorist
    measures
    1. The Covenant on Civil and Political Rights embodies India's best Constitutional Principles
    2. Prosecution of security personnel would be unjust ex post facto application of new law to conduct that was previously legal
    3. Fight fire with fire, or India will come apart
    4. "Universal" human rights are Western, Christian dictates
    5. The Geneva conventions regulate international war but not civil coflict
    6. Violence begets violence; repression breeds terrorism

  3. Which practices of the United States would help Rao make a case for:

    4. international
    cooperation    		 national
    sovereignty
    1. Payment of damages to Californian Japanese-Americans who survived military detention during WWII
    2. Army prosecution of Lt. William Calley for My Lai war crimes in Vietnam
    3. Ratification of the Covenant on Civil and Political Rights without accepting the optional protocol or any obligation to modify U.S. law
    4. Admission of the U.N. rapporteurs on Racism and Summary/Arbitrary executions
    5. Increased trade and investment with China after military action against protesters in Tienanmen Square
    6. Execution of a juvenile following opinion of Inter-American Commission of Human Rights opposing capital punishment for minors

III. Decision and Rationale

Prime Minister Rao must decide the following three questions:
  1. Should Indian security laws be revised to comply with international human rights standards or would submission to the U.N. compromise national sovereignty?
  2. Should the government prosecute security officials for gross human rights violations or grant amnesty to those who risked their lives defending national unity?
  3. Should the government allow more international monitors to visit Kashmir and Punjab or exclude organizations that criticized tough security measures?
Write a separate answer for each question. Explain your reasons in no less than 250 words in the space provided. Refer specifically to different Indian laws, international treaties, and organizations and why you would or would not change current policy. Then compare your rationale to model answers which justify very different approaches the Prime Minister could take.

Name: E-mail:

  1. Should Indian security laws be revised to comply with international human rights standards or would submission to the U.N. compromise national sovereignty?


  2. Should the government prosecute security officials for gross human rights violations or grant amnesty to those who risked their lives defending national unity?


  3. Should the government allow more international monitors to visit Kashmir and Punjab or exclude organizations that criticized tough security measures?



IV. Prime Minister Rao's Decision and developments through 1997

The Prime Minister's Congress Party not only lost the April 1996 elections, but Rao and several top cabinet officials were subsequently indicted for major corruption. A fragile coalition government of small parties selected H.D. Deve Gowda as Prime Minister, but Congress engineered his defeat within a year. Another minor party leader, I.K. Gujral became Prime Minister in 1997 and promoted more neighborly relations with Pakistan's newly elected leader Nawaz Sharif. India refused a U.S. offer to mediate following six days of border skirmishes with Pakistan in August 1997.

Peace in Punjab and Kashmir remained as elusive as ever, although fresh negotiations began at a 1997 summit meeting with Pakistan. K.P.S. Gill was removed as Police Commissioner, but terrorist bombings continued in the Punjab. The Sikh dominated Akali Dal party defeated Congress in February 1997 elections for the Punjab state legislature.

V. End Notes/Citations

1 U.S. Department of State, Country Reports on Human Rights Practices for 1994, February 1995.

2 U.S. Department of State, Country Reports on Human Rights Practices for 1993, February 1994.

3 AI Index: Punjab police: beyond the bounds of the law; ASA 20/08/95.

4 U.S. State Department 1995 Human Rights Report, India.

5 India Today, 31 May 1993, quoted in Amnesty International India: Torture and Deaths in Jammu and Kashmir, January 1995, p. 9.

6 Reuter News Service - India, "India Replaces Disputed Anti-Terrorist Law", May 19, 1995.

7 Armed Forces (Jammu and Kashmir) Special Powers Act, §4(a). Security forces are also empowered to destroy structures suspected of harboring militants or arms.

8 Order of the High Court of Jammu and Kashmir, Srinagar, 17 October 1994, High Court Petition No. 850/94, Jalil Andrave vs State, also reported in The Times of India, 20 October 1994. Quoted in Amnesty International India: Torture and Deaths in Jammu and Kashmir, January 1995, p. 5.

9 U.S. Department of State, Country Reports on Human Rights Practices for 1994, February 1995.

10 U.S. Department of State, Country Reports on Human Rights Practices for 1994, February 1995.

11 Resolution 47, 21 April 1948.

12 Human Rights Watch/Asia; Physicians for Human Rights, Dead Silence: The Legacy of Abuses in Punjab, 1994.

13 Amnesty International, India: Torture and deaths in custody in Jammu and Kashmir, Jan. 1995 AI Index: ASA 20/01/95.

14 U.S. Department of State, Country Reports on Human Rights Practices for 1994, February 1995.

15 International Commission of Jurists, Human Rights in Kashmir, 1995, 200 p.

VI. Bibliography/Reference Links

Scholars are currently enjoying an exponential increase in readily available legal texts, government documents, fact-finding reports, and daily news updates through on-line data resources accessible via computer links to world wide web homepages and gopher sites on the internet. That information superhighway was invaluable in the preparation of this case problem as indicated in the reference citations on the following pages. Some documents may have been moved to a different internet address, URL, since this reference was prepared.

International Human Rights Law: Treaty Texts, documents, reports

University of Minnesota Human Rights Library http://www1.umn.edu/humanrts/
Multilaterals Project http://www.tufts.edu/departments/fletcher/multilaterals.html
United Nations http://www.un.org/
Project Diana, UC http://www.law.uc.edu/Diana/index.html
International Covenant on Civil and Political Rights http://www1.umn.edu/humanrts/instree/b3ccpr.htm
Geneva Conventions of 1949 and Additional Protocols of 1977 http://deoxy.org/wc/wc-proto.htm
Torture Convention http://www1.umn.edu/humanrts/instree/h2catoc.htm

Reports and documents on human rights in India, Punjab, and Kahsmir

India
Jammu and Kashmir; Punjab