HRF/86/03

 29 October 2003

Human Rights Defenders: Fighting An Uphill Battle

The recent condemnable attack on the Chief Minister of the southern Indian state of Andhra Pradesh, Mr. Chandrababu Naidu, by members of an armed opposition group was followed by an unusual retaliatory action. Unusual for a democratic State, that is.

 Two men tried to enter the home of civil rights activists K.G. Kannabiran and his wife, Vasantha Kannabiran, on the pretext of selling furniture. Mrs. Kannabiran asked them to leave, which they did, on a motorcycle marked ‘Police’. Four days later, Mr. Kannabiran's daughter, Kalpana, received an anonymous telephone call threatening that her young daughters would be kidnapped.

Human rights groups in Andhra Pradesh report that such intimidatory tactics are not unusual. Attempts on the lives of senior government figures by extreme left-wing groups have led to retaliatory attacks on activists in the state in the past. Those involved in such attacks are said to either owe allegiance to the state police or are protected by the police.

But, perhaps India is an unusual democracy.

Human rights defenders like Mr. Kannabiran form the backbone of what might be an energetic and vibrant democratic polity. They work for the realisation of the fundamental rights chapter of the Indian Constitution. The Indian State however does not look upon such activists as partners in the democratic process. It instead subjects them to a suspicious, often hostile glare, regarding them as threats to “national interest”. As a result, human rights activists – taken to include individual activists, organisations, lawyers, journalists, and physicians, among others – find themselves at considerable risk when they take on issues deemed sensitive by the government.

The entire range of violations that human rights defenders attempt to address is often directed at the defenders themselves. Thus, torture, preventive illegal or arbitrary detention, disappearances, ill-treatment, the use of excessive force, and the violation of due process rights are used by State actors to blunt the efforts of human rights defenders. State actors include, among others, police, military personnel, paramilitary forces and intelligence officials. In addition to violating the law to deter defenders, State actors often also misuse the law. Preventive detention laws as well as sections in the Criminal Procedure Code and the Indian Penal Code that allow for preventive detention are applied arbitrarily to harass, intimidate, or obstruct peaceful protests by defenders.

The 1996 abduction and murder of Jalil Andrabi is a classic case. Mr. Andrabi, who had been investigating and pursuing cases of human rights violations in Jammu and Kashmir, disappeared after he was taken away by members of the Rashtriya Rifles, a paramilitary group. His body, with the hands tied, was found 19 days later in a river. The trial of the army major, identified by a special investigation team as prima facie responsible for the murder, is yet to conclude.

The case of Jaswant Singh Khalra is almost similar. A lawyer investigating disappearances and illegal cremations carried out by security forces in the state of Punjab during an insurgency in the 1980s, Mr. Khalra himself “disappeared” in 1995. Supreme Court proceedings into Khalra’s investigations as well as his own disappearance are continuing. His fate is still unknown.

A number of other attacks on human rights defenders have involved intimidation, harassment and the obstruction of peaceful protests. Activists protesting the construction of the series of dams on the Narmada river have been baton-charged, detained and even fired upon. Activists working with tribal people in the forest areas have faced arrests, threats and intimidation.

The space for human rights defenders to operate is shrinking further. The restrictive provisions of the Foreign Contribution Regulation Act (FCRA), the requirement of clearance from the Home Ministry before holding meetings involving foreign participants, constant surveillance by intelligence agencies – all point to increasing paranoia about the legitimate work of human rights defenders.

The FCRA requires all Indian organisations and individuals that seek to receive foreign contributions to receive clearance first from the Ministry of Home Affairs, in the form of either registration or prior permission. However, it is the highly politicised Home Ministry that administers these laws, rather than the Finance Ministry. A number of organisations have either had their applications for FCRA registration pending or have been turned down after long delays. Amnesty International’s Indian section has been unable to obtain prior permission under FCRA and is facing a serious resource crunch, forcing it to scale down its activities.

Non-governmental organisations (NGOs) must be held accountable for financial or other wrongdoing. However, normal regulatory and criminal justice procedures are sufficient to carry out this task. NGOs should be subjected to the same financial restrictions and reporting requirements that apply to other bodies.

The Government of India also attempts to curtail the freedom of assembly and association. From mid-1999, NGOs organising international conferences in India have required prior permission from the Ministry of Home Affairs and other relevant ministries. The clearance requirement is not pursuant to any law, rule or guidelines, it is simply the new practice of the Government of India. The clearance requirement is not manifest as a written policy with established procedures. It functions at the whim and fancy of the Government of India. This ad hoc operation places NGOs at a distinct disadvantage in its dealing with the Government of India as the procedure lacks transparency. The clearance requirement procedures are clearly prone to arbitrary use and abuse in the absence of established policies and procedures.

Human rights defenders in internal conflict areas face a two-pronged threat – from State security forces on the one hand and armed opposition groups on the other. NGOs as well as individual activists such as lawyers, medical personnel and mediapersons are under severe pressure to take sides and act accordingly. Mediapersons in Jammu and Kashmir, for example, have been known to receive threats from armed opposition groups. Individual activists and organisations in Northeast India face similar pressures.

While defenders in internal conflict areas may be more prone to attacks and harassment by non-State actors, the skewed socio-economic balance in India means that defenders elsewhere also face the disapproval – and the strong-arm tactics – of members of dominant social and economic groups, often in concert with the authorities.

In June 2002, Navleen Kumar, who had helped a number of tribal families win back the land wrested from them 25 years ago, was brutally murdered. A trained social worker, Ms. Kumar had taken up the cause of the Adivasis, indigenous people living at the edge of the city of Mumbai, whose land had been illegally acquired from them by local politicians, bureaucrats and builders with the connivance of the police. Arrests were made in connection with the crime, but the police is yet to present evidence against the accused.

Right-wing religious groups are another force defenders must contend with. Christian organisation involved in providing education, health and other services to underprivileged communities face threats, harassment and, often, violent attacks by Hindu right-wing organisations. The Christian groups are accused of proselytisation and of attempting to “destroy” Hindu culture and religion.

In February 2000, social reformist and civil liberties activist, Mr. Asghar Ali Engineer, was brutally assaulted allegedly by conservative elements from within his own Dawoodi Bohra community. This was not the first attempt at intimidating Mr. Engineer, who advocates, among other things, reforms in the Bohra community, which is a small sect of Ismaili Muslims following the Shia tradition.

The compelling force of multinationals comes into play when cudgels are raised on behalf of those resisting displacement, protesting the violation of labour laws, or simply demanding the protection of economic, social or cultural rights. In 1997, those leading protests against the Dabhol power project – undertaken by the now defunct Enron Corp- in the western state of Maharashtra were often detained, served externment orders, and also beaten up by police. Provisions of various laws were used to obstruct demonstrations and to prohibit them from entering areas where opposition to the project were most intense.

Not only is the State obliged to allow space for democratic dissent and legitimate human rights activity, it is also required to protect human rights defenders when their rights are violated by other forces. This requires State agencies such as the police, the armed forces and the judiciary to be educated about the protection of human rights and the limits of their coercive powers.

State institutions such as the National Human Rights Commission of India (NHRC) have a special responsibility to protect human rights defenders. Under the Protection of Human Rights Act, the NHRC is required to “encourage the efforts of non-governmental organisations and institutions working in the field of human rights.” Further, elucidating its relations with NGOs, the NHRC has stated that “[n]o duty is more essential for the Commission if it is to fulfill its responsibilities, for NGOs are its natural allies, sternest critics and indispensable partners.”

The NHRC has done little so far to address the risks and threats faced by human rights defenders. It has also remained silent on the blatantly political use of the FCRA by the Home Ministry.

The NHRC needs to regard its role in relation to human rights defenders in the widest sense possible. It must intensify the process of consultation with individual activists and NGOs with particular regard to their needs and the risks they face. Finally, all State agencies must be sensitised to the work of human rights defenders. The protection and promotion of human rights is not an ‘anti-national’ project; rather, it is aimed at strengthening democracy. It must be regarded as such.

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