For a democratic State founded on the notion of rule of law, it is surprising how many protest rallies in India – both peaceful and unruly – are countered with excessive force. Instances of police firing to “quell disturbances” are reported almost every week, and as for “lathi-charges”, they do not even register in the Indian consciousness as the use of force. They are often the first reaction to a protest rally and are accepted as inevitable. A ‘lathi’ is a full-length wooden staff, and not a cane or a baton as is commonly believed. Riot-control training is rudimentary, often compelling police personnel to go into attack mode when they find themselves unable to fend off unruly behaviour by protestors. 

The deaths of 12 residents and one policeman in Kalinga Nagar in the eastern Indian state of Orissa appear to have been the latest example of the immaturity and ineptness that define many of India’s democratic institutions. It is also certain that it will not be the last. 

The incident began with tribal residents of Kalinga Nagar gathering at the site of a proposed steel factory, aiming to thwart the construction on the grounds that they had not been adequately compensated for the sale of their lands and that many of their associated grievances had not been addressed. Kalinga Nagar is an industrial complex that houses steel factories and is the proposed site for a number of other such projects. Media reports indicate that there were no warnings and little attempt at pacifying the protestors through negotiations. Instead, it appears, nine platoons of the state police force began firing rubber bullets and teargas shells into the crowd in the presence of district-level civic officials. This appeared to further enrage the protestors, some of whom captured a policeman and hacked him to death. This reportedly prompted the police to begin firing live bullets, resulting in the deaths of 12 persons, including a schoolboy and three women. 

The Orissa police claimed they opened fired only after the tribals used bows and arrows to attack them at the steel plant site. Their actions, nevertheless, contravene the standard procedure for crowd control. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990) lays down the international standards to be followed while policing unlawful assemblies. Principle 9 lays down that firearms shall be used against persons to a limited extent, for the purpose of self defence or defence of others against the imminent threat of death or serious injury. Principle 14 provides that violent unlawful assemblies are to be dispersed with firearms only when less dangerous means are not practicable and only to the minimum extent necessary.   

Further, Principle 4 of the Police Code of Conduct in India lays down that as far as practicable, the methods of persuasion, advice and warning should be used. If the use of force becomes unavoidable then only the irreducible minimum force required in the circumstances should be used. 

The excesses did not end with the shooting. The bodies of those killed in the firing were taken away for post mortem examination and when they were returned to the victims’ families, it was reportedly discovered that five of the bodies were missing their palms, which appeared to have been cut off. Later reports also alleged that the breasts of a woman and the genitals of some of the men had been mutilated.  

The police claimed that the hands were cut off for purposes of forensic identification. The resulting furore prompted the Orissa Chief Minister to order an investigation by the State Human Rights Commission and announce that those responsible for the mutilation would be punished. As things stand, sections of the state’s medical fraternity and the police are engaged in either justifying the action or in passing the buck. A judicial inquiry by a sitting judge of the Orissa High Court was ordered on 10 January 2006. 

Mutilation of dead bodies violates the basic standards of forensic examination and international human rights law. The United Nations Manual on the effective prevention and investigation of extra-legal, arbitrary and summary executions (1991) provides for a model autopsy protocol. While the protocol requires that the autopsy report in cases of controversial deaths be thorough, it does not provide for mutilation of body parts for collection of evidence. And clearly the Orissa police do not seem to be aware of procedures such as DNA fingerprinting for the purposes of identification of the dead bodies, which requires the isolation of DNA from cells or tissues of the bodies without any kind of mutilation. 

The tribals have meanwhile alleged that the dead bodies were mutilated as an act of revenge by the police for the killing of a policeman during the protests. 

The South Asia Human Rights Documentation Centre (SAHRDC) has filed complaints with the National Human Rights Commission and Medical Council of India against the Orissa police and the doctors who carried out the post mortem examinations. It has requested the initiation of legal action against the guilty police officials and medical doctors. It has also requested an immediate review of the outmoded police rulebook that permits mutilation of dead bodies for forensic identification. 

Radicalisation of the displacement debate 

Reasoned debate demands that the Kalinga Nagar protests be placed in context. The issue of internal displacement caused by development projects is not a straightforward one. But its resolution is not helped by the extreme anti-development positions taken by certain Luddite organisations. Development is not always a monster; indeed, it is essential. If it were not, the protestors would not have been demanding their rightful share of the project pie. On the other hand, certain other quarters, including sections of the media, appear to find comfort in burying their hands in the sand. Displacement is not merely an issue for bickering politicians and bleeding heart NGOs. The problem is real, and until India evolves a comprehensive policy on internal displacement, Kalinga Nagars will continue to occur.  

Civil society would do well to push for the strengthening and implementation of the rights of tribals and for the framing of a policy on internal displacement. India’s record in both areas has been abysmal. India is yet to sign and ratify the ILO Convention No. 169 (The Indigenous and Tribal Peoples Convention, 1989). This is because it does not recognise the presence of “indigenous” populations within its territory although Article 1 (a) of the Convention clearly lays down that its applicability extends to “tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations.” It is evident to everyone else except the Indian government that the tribal population in India constitutes its indigenous population.  

Further, the Fifth Schedule of the Constitution of India ensures that the land in the Scheduled Areas shall remain with the tribals. However, the state has been continuously violating this Constitutional guarantee.  

In 1997, the Supreme Court of India declared in the landmark Samatha judgment that the government of Andhra Pradesh constitutes a “person” under the Mines and Minerals (Regulation and Development) Act and that the transfer of land in the Scheduled Areas for private mining purposes is null and void and is in direct contravention of The Forest Protection Act 1980 which prohibits mining in reserved areas. This decision by the apex court should have been a boon to all those tribals who were losing their lands to private entrepreneurs for commercial purposes but unfortunately, the directives issued in this judgment have only been observed in its breach. Not only has the state failed to implement the Supreme Court orders to protect Fifth Schedule areas from alienation but has continued its efforts to reverse the legal basis of the Samatha judgment by trying to amend the Fifth Schedule of the Constitution.  

It is surprising that no indigenous rights organisation has thought to place the Kalinga Nagar incident in the context of the violation of Constitutional rights of indigenous peoples. And while nobody appears to disagree on the need for a rehabilitation policy for displaced people, few have thought to urge Central and state governments to use the United Nations Guiding Principles on Internal Displacement as a blueprint for such a policy.  

The UN Guiding Principles are a set of guidelines for national human rights institutions and governments to observe and incorporate into their national agendas, and also provides a more comprehensive framework within which existing human rights law should be appropriately interpreted.

The lack of a law or policy has meant that most resettlement programmes have been unable to adequately compensate the displaced. Project designers fail to consider alternative forms of livelihood for those being displaced and in most cases, the amount paid as compensation is arbitrarily decided, and is often inadequate. Delays in payment of compensation are common.  

Development is necessary, and indeed, crucial to improving the living conditions of India’s marginalised communities. But it cannot take place without the participation of those who may stand to lose a significant portion of all that is valuable to them. The inevitable tensions that arise cannot be resolved by ignoring them or by cracking down on protesting citizens. The terms have to be negotiated completely and accurately. And that, more than anything else, is in the greater common good.

 Human Rights Features