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Campaign Against Impunity
Stop Custodial Killings, Torture, Custodial Rape, Illegal Arrests, Involuntary Disappearances, and Encounter Killings

Report of Planning Meeting, 4-5 January 2008, IICC, New Delhi.

The two-day meeting to develop strategies for a countrywide campaign against the culture and practices of impunity was held in Delhi on January 4-5, 2008 at the India Islamic Cultural Centre, Lodhi Road, New Delhi 110003. About 40 human rights defenders, academics, lawyers and social and political activists from Andhra Pardesh, Assam, Chhattishgarh, Delhi, Gujarat, Jammu and Kashmir, Karnataka, Maharashtra, Manipur, Punjab, Tamil Nadu, Uttar Pradersh, and West Bengal participated. (List of participants enclosed)

Impunity – Freedom from punishment for the police and security forces:
During the meeting, while sharing their experiences of the routine abuse of human rights of the ordinary people of the country every day, frontline human rights defenders and activists observed the systematic violation of the ‘rule of law’. The police and other law enforcement agencies of the states and the centre have become a law onto themselves. Time and again, these agencies were able to get away with breaking the law and procedures laid down by law. The resultant abuse of the fundamental rights of the people is being left unchecked and unpunished as the courts of the land are unable (or unwilling) to take action against errant police, security personnel and administration. This is the face of Impunity in the country. Immunity or the freedom from punishment enjoyed by the police and the security forces was not restricted to any particular state or region of the country. It is a national phenomenon. While almost all sections of the society were victimized by the practices of impunity, it was the religious minorities, the dailts, the poor, and the human rights defenders, who were the worse affected.

‘Legal’ or ‘Processual’ impunity is embedded in provisions like Section 197 and Section 132 of Indian Code of Criminal Procedure (Cr.Pc.) as well as Section 6 of the Armed Forces Special Power Act (AFSPA). These sections provide that no police personnel or a members of the armed forces may be prosecuted in any court of law for any action ‘purported to have been committed in discharge of duty’ without the prior permission of the government. In fact almost every section of the Cr.Pc. provides some kind of impunity. For example Section 46 empowered the police to shoot to kill any accused who was charged with a crime punishable by death, if that accused person attempted to escape from police custody. The police of Andhra Pradesh state has made extensive use of this section to cover up the fake encounter killing of hundreds so-called Naxalite detainees.

Experience showed that the government habitually denied sanction for prosecution of members of police and security forces whenever any ‘private criminal complaint’ was filed against them. In many cases, the police routinely, refused to record First Information Report (FIR) against misdeeds of police personnel. In cases where due to sustained campaign by victims’ families and human rights defenders, FIRs were lodged, these were never properly investigated. In the rarest of rare cases under immense pressure of the public the government ordered investigations by the agencies of the state governments or that of the centre into complaints against police or security personnel. Unfortunately even when such investigations established prima-facie cases against the accused police or security personnel, the guilty persons went unpunished as bureaucrats in the ministries of Home and Defence deny sanction for prosecution of the guilty.

This practice has divided the citizens of India into two categories – one who are ruled by law, who can be punished by the law courts for their misdeeds - and the other who are protected and cannot be punished by law courts unless their employer, the State sanctions their prosecution. The freedom enjoyed by the killers of the Dalits and minorities - be it the Sikhs, Muslims, Christians and Buddhists - whether it was in Parasbigha, Bhagalpur, Delhi, Kanpur, Maliana, Hasimpura, Merrut, Mumbai, Ahmedabad, Baroda, Godhra and many other parts of the country since independence, bear testimony to this double standard of our political system.

A National Phenomenon:
Indian democracy is sixty years old, yet some of the core issues like police reforms and repealing old colonial practices which treated the Crown’s officers as superior to the ‘native subjects of the colony’ have not been abandoned. It was observed that a vocal section of the middle classes and the media tend to support the continuation of some of these undemocratic practices in the name of ‘protection of honest and good officers’. Why ‘honest and good officers’, who were law abiding, need to be ‘protected’, by putting them outside the law, remained a mystery. This is perhaps symptomatic of the colonial legacy that the ruling elite and the middle classes of India have inherited from the British.

In our caste and class divided society a vast majority of the people are condemned to live in abject poverty. The Adivasis, Dalits and the religious minorities suffer systematic marginalisation and denials, while a small minority continue to enjoy the lion’s share of the benefits of development and democracy. The process of privatisation of public assets is pushing enormous numbers of the poor to the margins. The massive take over of farmlands, grazing land, forest areas and water resources, the entry of high tech, job-crunching and capital intensive business into almost every sector of economy, including small retail business is driving the rural and the urban poor deeper into poverty. The alienation of the poor from the state and the growing confrontation between the haves and the have-nots is symbolised by the fact that while ‘shining’ India celebrates the arrival of more Indian multi-billionaires on the world scene, hundreds of thousands of farmers are being forced to take their lives as they are unable to make two ends meet. The use of the principle of eminent domain to take away the sources of livelihood from the poor, and the use of the police and security forces to keep the agitating and protesting masses at bay is indicative of a growing duality in our polity where some citizens are ‘more equal than others’. Increasingly, the law enforcement machinery serves the elite. The criminal justice system has become a façade for denial of justice to the excluded. The laws of evidence and the court procedures are so loaded against the poor, that they can rarely get justice. Their truth, agony and life experience have no value the castles of law. The elected representatives of the people are busy amending the Code of Criminal Procedure making it more effective for control of crime- step by step removing the little protection that the law ever provided to the ‘accused’. The parliament does not plan to repeal such sections of the Cr. Pc. like 197, 132, and section 6 of AFSPA.

Enactments of several national security and anti-terrorist laws have further vitiated the entire criminal justice system. Also, the post-September 11 global, social, political context legitimized the use of military methods to counter ‘terrorism’, and made the practices of impunity more rampant. Practices of impunity exist not only in the so-called ‘disturbed areas’, but the anti-terror agencies of the states all over the country are violating the fundamental rights and human rights of the people. The repeated pronouncements of the Prime Minister and the Home Minister of India that left wing extremism was the most serious threat to India’s internal security and that it must be dealt with ruthlessly, has given greater validity to the targeted harassment, illegal arrests and killing of social activists who are opposing the government’s pro-rich development policies. The recent experiences of Singur and Nandigram in West Bengal, Kalinganagar and Jagatsingpur in Orissa and Bastar in Chattishgarh are witness to the continuing failure of the State, the judiciary, the national human rights institutions in protecting the human rights of the people. In Nagaland, Manipur Assam, Andhra Pradesh, Punjab, Jammu and Kashmir, Gujarat, Maharashtra, Bihar, Chhattisgarh, and many other places in the country, the fundamental cause of this abysmal situation is Impunity. It was also noted that the situation in the states of Northeast India and in Jammu and Kashmir, was particularly bad, as people lived under virtual martial law regimes without the protection of constitutional safeguards.

Failure of Judiciary:
Several participants observed that the judicial response to the system of ‘prior sanction’ which is at the core of IMPUNITY has been rather erratic. One participant pointed out that in 1932, even during the rule of the British, the Madras High court had held that that any abuse of authority by an officer in the performance of duty would not protected by sections 197 & 132, yet the courts of independent India have continued to waver on this issue. In this context, it was said that the judges being a part of society, reflected the prejudices of their class and caste. Indeed, the class and caste of the judicial, executive and police officials was a significant element in understanding the practices of impunity. In addition there were pragmatic aspects like the dependence of the district and sub-division judicial officers on the local police for vehicles and security, which impinged upon the functioning of the judiciary. Some of the participants, particularly from Andhra Pradesh, Karnataka, Gujarat, West Bengal, Jammu and Kashmir, and Manipur talked about an amorphous social nexus between the police and judiciary. It was also said that the judiciary often showed immense tolerance for police misbehaviour. The human rights defenders were unable to speak openly against the inconsistent behaviour of the judiciary and its leniency towards the police for fear of being charged with contempt of court.

Human rights defenders from Andhra Pradesh, Chhatishgarh, Maharashtra, Tamil Nadu, and West Bengal observed that impunity persisted not only within the courts, security agencies, and governments’ departments. There were numerous instances where non-state actors, particularly the state sponsored armed groups like Village Volunteer Force, SULFA and Salwa Judum or sometimes cadres of the ruling political parties were found to enjoy freedom from punishment for murder, torture, rape, loot, arson, and extortion under the protection of the agencies of the State. In the name of development, particularly in the designated Special Economic Zones, private security forces employed by the corporate sector have been allowed to beat up and forcibly evict poor people from their lands which were being forcibly given away to the big companies and multi-national corporations.

In addition, disappointment was expressed at the failure of national and state level human rights institutions (e.g. NHRC, SHRCs, Minority commission, Women’s Commissions, etc.) in protecting rights.

While Impunity was a systemic problem, the participants agreed that the levels of impunity within the judiciary, in particular, needed to be explored, proven, and challenged. Considering the judiciary’s inconsistency in dealing with the prosecution, it was suggested that we should expose the broader gamut of protective nexus that exists among all the agencies.

The campaign:
It was obvious that combating the all-pervasive practices and the culture of IMPUNITY was not going to be an easy task. Garnering support of the media and the middle classes would be quite difficult, particularly as a large section of the upward mobile middle classes have come under the sway of the politics of neo-conservatism and indeed are demanding tougher laws. What was going to prove even more problematic was the focus on the judiciary, and exposing its systematic failure to protect and uphold the constitution.

Enlisting the attention and sympathetic involvement of the media was emphasised as crucial but it was recognised as a formidable challenge in view of the media being driven by a free market ideology and pro-capitalist globalisation bias. As a result, the media hardly noticed the happenings at the grassroots level. Even when it did, after the event of a gross violation, it rarely engaged seriously or bothered to follow through in covering subsequent developments.

Impunity starts at the stage of filing of the FIR and prevails through out the process. As this process remains obscure from the eyes of the media and the middle class consumers of the media products, the media often fails to see the collusion of the police, the executive and the judiciary in defeating the ends of justice. On the contrary, much more impunity was being built in the guise of police reforms. Unfortunately, significant sections of the middle classes, influenced by the global media campaign on terrorism, seem to want tougher policing and are ready to surrender their civil liberties, in name of protecting ‘security’, without questioning whose security was at stake – the state’s or the citizens.

The consensus that emerged in the discussion was to focus on the judiciary as a specific Campaign Strategy. However, in focusing on the judiciary, it was argued that it was not enough to focus only on the higher judiciary, but also on middle and lower levels if impunity was to be eradicated. This campaign must demonstrate how the system subverts the right to justice and how the process of giving ‘sanction’ is used to protect the guilty. The seamless connection among all the agencies that have a constitutional duty to oversee the functions of the police and other law enforcement agencies lies at the root of the culture of impunity. In view of the attitude of the media and the middle classes in supporting the erosion of civil liberties and human rights and reinforcing a culture of impunity, it was imperative that the campaign against impunity focuses on procedural lapses and confronts the judiciary and the government with proven facts.

It was recognised that individuals and associated organisations present at the meeting, as well as others, had built up valuable documentation of cases, (e.g. Campaign Against Torture,) a network of human rights defenders at the grassroots, and legal aid services. Several participating organisations were already engaged in campaigns and were mobilising people at the grassroots for social justice and democratic rights. Many participants also offered to work together with other stakeholders on this campaign and to pool in their resources to give greater strength to the campaign. It was recognised that this must be drawn upon and consolidated as a valuable resource base for the Campaign.

It was recommended that the campaign should focus on certain critical aspects that contribute to the perpetuation of impunity and the subversion of the rule of law:

1. Processual impunity: how section 197 or other sections are used by the state to prevent the due process of law from taking its course. Need to challenge the nature of power, lack of transparency, the way the sanctions regime has been used.


2. Encounter and Custodial killings: The law requires that every encounter killing must be investigated to establish how ‘death’ had taken place. Killing in self-defence is not a ground for exemption from investigation. This has to be proved in an independent court of law. The state must follow the procedure laid down by law. It also needs to be proved that the force used by the agencies of the state during the encounter was the minimal force as is recommended by law. As a part of the campaign we should investigate 10 incidents of so-called encounter killings and custodial killings. Not the event so much as what the government departments did to establish the genuineness of the ‘encounter’. These investigations will expose the systemic and technical flaws in the investigations and show how the government subverts the law. This is necessary to establish that Right to life which is fundamental to our system is being violated and the state is subverting the very process that it is to provide.


3. Police firing: There are established procedures in law for investigation of the incidents of police firing. It is important to ask whether the government follows these procedures. As a part of the campaign we should investigate whether the government followed the procedure to examine the incidents of firing on citizens was justified or not. It is again necessary to expose the failure and weakness in the system. The purpose of the campaign is to build a body of arguments, advocacy material based on our enquiry on the functioning of the state. How Section 197 is being used and abused to prevent prosecution.

Concluding decisions of the two-day workshop:
All participants unanimously agreed to actively participate in the campaign against IMPUNITY. The following decisions were approved by all present:

1. Title of Campaign: “ Campaign Against Impunity”
2. Central Coordinating Organizations : SAFHR/ CHRI
3. State Partners:
1. Kolkata, West Bengal : MASUM ( Mr. Kirity Roy)
2. Mumbai, Maharashtra and Ahemdabad, Gujarat : Communalism Combat (Ms. Teesta Seetlavad) and Sahr Waru (Ms. Sheba George) will collectively coordinate for these two states
3. Madurai, Tamil Nadu and Bangalore, Karnataka: South India Cell for Human Rights Education and Monitoring -SICHREM (Mr. Mathews Philip, Mr. Manohar Hosea) and People's Watch (Mr. Henri Tiphagne)
4. Raipur- Chhattisgarh: Forum for Fact-finding Documentation and Advocacy -FFDA (Mr. Subash Mohapatra)
5. Imphal, Manipur: Human Rights Alert (Mr. Babloo Loitongbam)
6. Varanasi, Uttar Pradesh: People's Vigilance Committee on Human Rights- PVCHR (Dr. Lenin Raghuvansi)
7. Srinagar, Jammu & Kashmir: Centre For Law & Development (Mr. Shafat N. Ahmed)
8. Delhi: Commonwealth Human Rights Initiative -CHRI (Ms. Maja Daruwala); Delhi Forum (Mr. Vijayan MJ); The Other Media- TOM (Mr. Ravi Hemadri); South Asia Forum for Human Rights- SAFHR (Mr. Tapan Bose)


4. Focus of the Campaign
• Role of State & its institutions : what has been done or not done in the realm of impunity, failure of various institutions in performing constitutional duties
• Judiciary including Human Rights Institutions - overall stress on procedural lapses at all levels of the judiciary and state and national institutions.
• Twin focus –
  • Region/ State specific focus; issues which are state specific as well as common issues with cross cutting features (area specific planning keeping in view dynamics/ needs of that particular area/issue)
  • National level campaign, keeping judiciary as a central focal point
• Demand repeal of the sanctions regime in Cr.Pc. and other laws.
• Demand to sign and ratify Convention against Torture on 60th anniversary of UDHR
• Side by side linking with international campaign against impunity ( UPR, 60th UDHR)
• Linking impunity with Right of Life and propaganda of national security
• Demand Repeal of Armed Forces Special Powers Act.


5. Need to build a strong network and support system among various partners Human Rights Organizations/ defenders for their protection.
6. Need to develop the ‘central focal points’ (SAFHR/CHRI) as the repository of documentation, campaign materials, and resources and for its dissemination among partners.
7. Need for regular periodic meetings of this working group to review the progress of campaign
8. Minutes of this meeting along with the list of final decisions will be circulated among the all partners who have attended this meeting.

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