I. Introductory Background and Context
A. Political Crisis
Introduction,
Opposition Challenge,
Reform Pressure
B. Secessionist Movements in Two States
Punjab,
Kashmir
C. India's Legal System
Anti-Terrorism Laws,
National Remedies
D. International Human Rights
UN Treaties,
Geneva Conventions,
Observers
Admission,
Exclusion
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.
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 antiMuslim 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 noninternational 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.
A. Which choices could Prime Minister Rao make to satisfy:
(check one option for each item)
InterHindu
national nationalist
critics
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
B. Which arguments could the Prime Minister use to justify:
emergency
human
antirights
terrorist
reform
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
C. Which practices of the United States would help Rao make a case for:
international national
cooperation 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 InterAmerican Commission of Human Rights opposing capital
punishment for minors
Submit
Reset
III. Decision and Rationale
Prime Minister Rao must decide the following three questions:
A. Should Indian security laws be revised to comply with international human rights
standards or would submission to the U.N. compromise national sovereignty?
B. Should the government prosecute security officials for gross human rights violations or
grant amnesty to those who risked their lives defending national unity?
C. 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:
A. Should Indian security laws be revised to comply with international human rights
standards or would submission to the U.N. compromise national sovereignty?
B. Should the government prosecute security officials for gross human rights violations
or grant amnesty to those who risked their lives defending national unity?
C. Should the government allow more international monitors to visit Kashmir and
Punjab or exclude organizations that criticized tough security measures?
Submit
Reset
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
http://www1.umn.edu/humanrts/instree/b3ccpr.htm
Political Rights
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

Amnesty International, India: Examination of the Second Periodic Report by the Human
Rights Committee, AI Index: ASA 20/05/93 3/93




U.S. Department of State, Country Reports on Human Rights Practices
o "Index of U.S. State Department Human Rights Reports"
o http://www.state.gov/www/global/human_rights/hrp_reports_mainhp.html
Embassy of India, Address by Dr. Manmohan Singh, Minister of Finance to the
Government of India to the 51st session of the Commission on Human Rights, Geneva on
February 10, 1995;
India Network Archives: Headline News; http://india.bgsu.edu/archive/0002.html
The Hindu: --National News; http://www.the-hindu.com/
Jammu and Kashmir; Punjab




















Amnesty International, Punjab police: beyond the bounds of the law; ASA 20/08/95
AI, 'An Unnatural Fate' Disappearances and impunity in the Indian States of Jammu and
Kashmir and Punjab, 12/93, 68 pp. ASA 20/42/93
AI, Human Rights Violations in Punjab: Use and Abuse of the Law, May 1991, 62 pp.
(ASA 20/11/91) and Response to the Indian Government's comments on Amnesty
International's report on Punjab (ASA 20/25/91).
AI, The Terrorist and Disruptive Activities (Prevention) Act: The Lack of Scrupulous
Care, ASA 20/39/94
AI, Torture and deaths in custody in Jammu and Kashmir, 1/95, 125 pp
Amnesty International Online; http://www.amnesty.org/
Embassy of India, A Summary of the government of India's response to Amnesty
International's Report titled "Torture and Deaths in Custody in Jammu and Kashmir"
January 31, 1995;
Human Rights Watch, Arms and Abuses in Indian Punjab & Kashmir, 9/94, 59
pp.http://www.hrw.org/campaigns/kashmir/1994/.
HRW, Dead Silence: The Legacy of Abuses in Punjab, 5/94, 112
pp.http://www.phrusa.org/research/torinp.html
HRW, Encounter in Pilibhit: Summary Execution of Sikhs, 9/91, 8 pp.
HRW, Punjab in Crisis (Human Rights in India), 8/91, 224 pp.
HRW, Continuing Repression in Kashmir. 21 pp. August 1995
HRW, Continuing Repression in Kashmir: Abuses Rise as International Pressure on
India Eases, 8/94,
HRW, The Human Rights Crisis in Kashmir: A Pattern of Impunity, 7/93, 240 pp.
HRW, Rape in Kashmir: A Crime of War, 5/93, 19 pp.
HRW, The Crackdown in Kashmir: Torture of Detainees & Assaults on the Medical
Community, 3/93,
HRW, Kashmir Under Siege (Human Rights in India), 5/91, 168 pp.
HRW; http://www.hrw.org/
International Commission of Jurists, Human Rights in Kashmir, 1995, 200 p.
United Nations, Report of the U.N. Special Rapporteur on extrajudicial, summary and
arbitrary executions, E/CN.4/1994/7, parag 334, 339, 342