Adhikaar Nation - Studying Human Rights in the Contemporary Society

Objective of the Study:

The subject of Human Rights mostly gives the readers an insight on the society where people are wronged based on their fundamental rights. The department of Mental Health has defined Human Rights as the values and fundamental principles that are needed in order to support and promote the full respect, dignity, and care of each individual.[1] However, these rights are often ignored in the contemporary Indian society, not deliberately, but because of the more serious and grave cases that the judicial system has not yet solved, which makes Human Rights violation cases seem petty before the system, as according to any rational man, a homicide is more serious than a person who was called black and discriminated.

However, this ignorance has led to a lazy judicial system which does not give much support to the people who suffer from human rights violation. In this study, we will look at some of the contemporary human rights issues which have become big matters of concern, although they were ‘petty’ at first.

The topics I will be covering through this research study are briefly mentioned as follows:

1.  The Jaffrabad Case, where Safoora Zargar was arrested under UAPA act and accused of spreading terror through a strong speech delivered in public, which apparently caused riots in Delhi. Brief touch on Natasha Narwal and Devangana issue.

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[1] Massachusetts. Department of Mental Health. (2000). “Human Rights 101: for Human Rights Coordinators, Human Rights Officers, Human Rights Committees and the People You Serve”, Massachusetts Department of Mental Health (2000).

2.   Umar Khalid’s feminist, anti-hate peaceful group – “India against Hate”, for which he was arrested, as his speeches were misleading and caused riots in Delhi.

3.  Divyangana Trivedi being an anti-feminist while a woman herself.

4.    Brief touch on the prison issue in India. 89% of prison population is only undertrials. Slow, lazy Indian Judiciary, huge burden on those who are innocent, poses as a threat to the whole country.

Introduction:

Before diving into the issues that are going to be discussed in this research study, the author would like to first start by sharing Akhilesh Maheshwari’s[1] (Co-Founder of Naya Sawera NGO – dealing with POCSO Act and Juvenile Justice Act majorly)  these issues. Naya Sawera NGO has taken several initiatives, such as, in order to human rights violations issues  the NGO operates a shelter home for children who have been abused, who have lost their homes, who have run away due to several issues, etc. and also makes the presumed less-dominant gender in our country- the women, feel more comfortable in their skin by providing them employment, health care facilities, skill-training, etc. The NGO majorly deals with the Juvenile Justice Act (JJ) and the POCSO Act (Prevention of Children from Sexual Offences) and women-empowerment is a secondary facility that it has to offer.

According to Mr. Maheshwari, as a responsible citizen of the country, an individual should not hesitate to help in cases where they can help, without involving the busy authorities, and solve the matter through easy and supportable solutions. It should be from within, that an individual thinks that such instances should be dealt with on a serious note and swiftly handled like any other case that the judicial system is capable of dealing.

    I.  Jaffrabad Case of Safoora Zargar, Natasha Narwal, Devangana Kalita, and other Human Rights Defenders

On 23^rd May 2020, Ms. Narwal and Ms. Kalita were arrested under Sections 186 (obstructing public servant in discharge of

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[1] Poulomi Chatterjee, “Interview with Akhilesh Maheshwari – Co-Founder of Naya Sawera NGO”, https://www.youtube.com/watch?v=BpLf-q58GdQ (Accessed 25^th June 2020).

public functions), 188 (disobedience to  order duly promulgated by public servant), 353 (assault to deter public servant from discharge of his duty), 283 (danger or obstruction in public way or line of navigation), 341 (punishment for wrongful restraint), and 109 (punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its provision) read with Sections 147 (punishment for rioting) and 34 (acts done by several persons in furtherance of common intention) of Indian Penal Code (IPC). On 24^th May 2020, they were granted bail, however, were arrested once again in a very short time period, under FIR No. 59/2020 which consisted of different charges than the prior FIR No. 48/2020, specifically, Sections 147 (rioting), 149 (unlawful assembly), 353 (assault to deter public servant from discharge of his duty), 283 (danger or obstruction in public way or line of navigation), 323 (punishment for voluntarily causing hurt), 332 (voluntarily causing hurt to deter public servant from his duty), 307 (attempt to murder), 302 (punishment for murder), 427 (mischief causing damage to the amount of fifty rupees), 120B (criminal conspiracy), 188 (disobedience to order duly promulgated by public servant) of Indian Penal Code (IPC), Sections 3, 4 of Prevention of Damage to Public Property Act (PDPP), and Sections 25, 27 of Arms Act.

Apparently, on account of the CAA Protests which were held on Jaffrabad Metro Station on the month of February, Ms. Narwal and Ms. Kalita, along with a crowd of other human rights defenders were arrested under a common FIR, i.e. FIR No. 48/2020, granted bail, but arrested very soon after under a different FIR with different charges, i.e. FIR No. 59/2020 and kept in custody for the same. This was mainly because of the reason that sub-inspector Arvind Kumar of the narcotics unit of 

the Crime Branch received information that these riots were a pre-planned conspiracy, after which an investigation procedure was appointed by the Special Cell, which led to the formation of a different FIR for those who were involved.[1] Other sources told The Indian Express that the police invoked the UAPA because of alleged links with the Popular Front of India (PFI).

Amongst these human rights defenders, was also the pregnant Jamia Milia Islamia University student, Ms. Safoora Zargar who was arrested under the same circumstances, granted bail, but arrested under FIR No. 59/2020 soon after, despite the fact she was pregnant. Ms. Zargar was not provided bail for months, until 24^th June 2020, on “humanitarian grounds”[2] according to the media and the police. Although it is assured by the prison authorities that all the accused who are of ill health or pregnant, will be taken care of as necessary according to the gravity of their situation, Ms. Zargar was not treated appropriately.[3] To build upon this, The United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, which is also known as the “Bangkok Rules”[4] have recommend that while deciding on pre-trial measures, non-custodial alternatives should be preferred for pregnant women, like Ms. Zargar, the same which was not implemented until

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[1] Infra Note 14.

[2] FIDH(June 23 2020), “India: Release on bail on humanitarian grounds of Ms. Safoora Zargar”, Available at: https://www.fidh.org/en/issues/human-rights-defenders/india-release-on-bail-on-humanitarian-grounds-of-ms-safoora-zargar [Accessed on 30 June 2020].

[3] UN Office on Drugs and Crime (UNODC), (September 2008), “Handbook for Prison Managers and Policymakers on Women and Imprisonment”, Available at https://www.refworld.org/docid/4a096b0a2.html [Accessed on 27 June 2020].

[4] UNODC (16 March 2011), “United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules)”, Available at: https://www.unodc.org/documents/justice-and-prison-reform/Bangkok_Rules_ENG_22032015.pdf [Accessed on 27 June 2020].

when it was high time which caused immense stress to both Ms. Zargar and her well-wishers, including her family.

The detention of such human rights defenders is completely uncalled for, as addressed to the Home Minister[1], that such an action was designed to merely punish these human rights defenders for defending human rights and engaging in peaceful protest against a discriminatory law despite the alarming situations of a pandemic which is unnecessarily putting their lives and health at a serious risk. It is observed by a rational eye that after considering all the provisions of laws available to mankind which are applicable in the territory of India, it is nowhere found beyond reasonable doubt that these human rights defenders did not have the right to freedom of expression and that of peaceful assembly. Moreover, the Indian Prison staff has also taken decisions to grant non-custodial means for the prison inmates on account of COVID-19 and the unsafe scenario. More specifically, 42,529 undertrial prisoners and 16,391 convicts have been released, according to the report from National Legal Services Authority (NALSA).[2] Thus, it is difficult to assume that the prison staff cannot grant bail to Ms. Zargar and other human rights defenders in this context.

Therefore, it is submitted before the honorable Prime Minister of India, Union Minister of Home Affairs of India, Ministry of Home Affairs of India, Chief Justice of India, Supreme Court of

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[1] OMCT (26 May 2020), “India: Joint Open Letter To The Indian Government Calling For The Release Of Human Rights Defenders At Risk” Available at: https://www.omct.org/human-rights-defenders/urgent-interventions/india/2020/05/d25863/ [Accessed June 27 2020].

[2] Krishnadas Rajgopal (17 May 2020), “Over 42,000 undertrials released to unclog prisons: NALSA report”, The Hindu Available at https://www.thehindu.com/news/national/over-42000-undertrials-released-to-unclog-prisons-nalsa-report/article31609154.ece#:~:text=Legal%20services%20institutions%20have%20intervened,Services%20Authority%20(NALSA)%20said. [Accessed 3 July 2020].

India, National Human Rights Commission of India that they should put an end to all the acts of harassment that the above human rights defenders are facing, even at judicial level. They should also adhere to all the provisions of the United Nations Declaration on Human Rights Defenders adopted by the UN General Assembly on December 9, 1998, in particular, the Articles 1, 6, 8, 11 and 12.2.[1] In addition to this, the arrests of peaceful protesters violates the country’s obligations under the International Covenant on Civil and Political Rights (ICCPR), i.e., to respect and protect the rights to liberty, to freedom of expression and peaceful assembly, set out in Articles 9, 19 and 21 of the above mentioned treaty.[2] It is also submitted before the above addressed, that the observatory of FIDH (International Federation for Human Rights) recalls that these human rights defenders should never have been detained in the first place, as this detention was only aimed at punishing them for their legitimate human rights activities.[3]

To further elaborate, the modern prisons in India are supposedly called “correctional facilities” which are meant to  rehabilitate, correct and reform the detainees.[4] Therefore, it seems very much reasonable to doubt, why these detainees have been kept in “correctional facilities” for exercising their rights. In fact, according to the National Human Rights Commission (NHRC),

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[1] FIDH(May 29, 2020), “India: Arbitrary detention of several defenders for protesting against the CAA”, Available at https://www.fidh.org/en/issues/human-rights-defenders/india-arbitrary-detention-of-several-defenders-for-protesting-against [Accessed 25th June 2020].

[2] Supra Note 7.

[3] Supra Note 4.

[4] Gurmeet Nehra (May 2016), “Correctional system vis a vis prison reforms in India”, International Journal of Law. 2(3) 43-47.

about 74.18% of the prison population in India are undertrials[1], like the detainees mentioned above. If the Indian prison is going to test people based on their fundamental rights, they must solve the contradiction between the constitution and the politics.

I.  Umar Khalid’s “India Against Hate”

Umar Khalid was charged under the Unlawful Activities Prevention Act (UAPA) by the Delhi Police[2], particularly under Sections 13, 15, 16, 17 and 18 (dealing with terrorist acts or funding), as a result of his “provocative speeches” during the interval when US President, Donald Trump had visited India. According to the Delhi Police, Khalid’s speeches were considered instigating and also caused the riots in Delhi in February 2020. Khalid was filed under sections 147 (rioting), 148 (rioting, armed with deadly weapon), 149 (unlawful assembly) and 120B (criminal conspiracy) of the Indian Penal Code (IPC). However, in similar circumstances as observed in the Jaffrabad case which was discussed earlier in the research study, Khalid’s case was also transferred for investigation by the Special Cell.[3] This resulted in more serious charges, specifically sections 120B read with 124A (sedition), 302 (murder), 307 (attempt to murder), 353 (assault to deter public servant from discharge of his duty), 186 (obstructing public servant in discharge of public functions), 212 (harbouring offender), 395 (dacoity), 427 (mischief causing damage to the amount of Rs 50), 435 (mischief by fire or explosive substance

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[1] NHRC, “74.18 per cent of prison population are undertrials”, Press Release Test English, Available at: https://nhrc.nic.in/press-release/7418-cent-prison-population-are-undertrials [Accessed on 30 June 2020].

[2] Mahender Singh Manral , Pritam Pal Singh (22 April 2020). “UAPA against Umar Khalid and Jamia activists over riots in Northeast Delhi”. The Indian Express Available at https://indianexpress.com/article/india/uapa-against-umar-khalid-and-jamia-activists-over-riots-in-northeast-delhi-6373398/ [Accessed 2 July 2020].

[3] Id 14.

with intent to cause damage to amount of Rs 100), 436 (mischief by fire or explosive substance with intent to destroy house, etc.), 452 (house-trespass after preparation for hurt, assault or wrongful restraint), 454 (lurking house-trespass), 109 (abetment), 114 (abettor present when offence is committed), 147 (punishment for rioting), 148 (rioting, armed with deadly weapon), 149 (unlawful assembly), 124A (punishment for sedition), 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language) and 34 (common intention) in addition to 3 and 4 of the Prevention of Damage to Public Property (PDPP) Act and 25 and 27 of the Arms Act.[1]

However, to carefully conduct a research study to make the readers believe the author’s opinion, it is important to not jump to conclusions based on what the authority has to say. After several observations, the author has come to a point where a reasonable doubt in convicting Mr. Umar Khalid for sedation, and thus other charges. To further elaborate, after carefully analyzing Khalid’s speech[2], it has been noticed by the author that two very important clauses[3] in his speech were left out by the “investigation” officers when they formed a different FIR against the accused all together. It should be noted that Khalid stressed on Mahatma Gandhi’s principles of Ahimsa and Satyagraha, or more specifically, Civil Disobedience and Non-Cooperation in terms of Law which was followed by Gandhi

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[1]  Aditi Chattopadhyay (3 May 2020). “Fact Check: Did Umar Khalid make Inciting Comments in his Speech?” The Logical Indian Crew Available at https://thelogicalindian.com/fact-check/umar-khalid-delhi-riot-uapa-fir-united-against-hate-20901 [Accessed 2 July 2020].

[2] The Wire Analysis (13 March 2020). “Selectively Quoting His Speech, BJP MPs Blame Umar Khalid for Delhi Riots”, The Wire Available at https://thewire.in/rights/umar-khalid-bjp-amit-shah-delhi-riots [Accessed 2 July 2020]. (https://youtu.be/9tpM9-llpOk).

[3] Supra Note 16.

whilst the fight for freedom of India. In fact, in his speech, Khalid also thanked the Prime Minister of India for recognizing and giving recognition to Shaheen Bagh, New Delhi, and other appreciations. However, he claims that he himself along with his supporters are pressurized to conduct Civil Disobedience and Non-Cooperation movements as suggested by Gandhi, as they believe they have not been given justice by the authority of India (in relation to the attacks on JNU on 15^th December 2019) when they asked for help by going to the police. However, even after following all correct procedures, they were not granted any assistance. It seems very evident to them that there is a religious oppression against the Muslim minority which enraged them to such a point, they are pressurized to follow Civil Disobedience and Non-Cooperation movements as suggested by Mahatama Gandhi, however, with a firm principle of Ahimsa. This can be confirmed from his speech at Amravati, where he said, “Agar wo nafrat phelaenge, toh hum pyaar se jawaab denge…lekin desh ko barbaad karne nahi denge.”[1] In order to give a firmer base to this argument, Mr. Khalid also admitted the same in his speech at the admin block of Jawaharlal Nehru University (JNU) where he said, “If anyone speaks up against something in this country, then, If someone is an Adivasi, they call him a Maoist, if someone is a Muslim, they call him a terrorist. There has been a whole process like this (in the media) with the backing of the entire state apparatus, behind this kind of media trial.”[2]

Moreover, the fact that Mr. Khalid promoted Ahimsa and Non-Violence in his speech, it is inconsistent to hold him liable for

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[1] Supra Note 17. 

[2] Hisham Ul Wahab P. (29 February 2016), “The Way Umar Khalid Is Being Singled Out Proves Him Right”, India Resists Available at https://indiaresists.com/umar-khalid-is-being-targeted-separately/ [Accessed 4 July 2020].

assault, murder, attempt to murder, and other violent crimes that he is charged for.

Thus, the claims of Mr. Umar Khalid making inciting comments in his speech is full of reasonable doubt, and thus cannot be assumed correct by the authorities in this regard. Hence, it is correct to say that the claims against Mr. Khalid are false.

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