Table of Contents
Key Individuals Named in this Report
I. Summary and Recommendations
II. Background: New Delhi and Bombay
III. Background to the Protests: Ratnagiri District
IV. Legal Restrictions Used to Suppress Opposition to the Dabhol Power Project
V. Ratnagiri: Violations of Human Rights 1997
VI. The Applicable Laws
VII. Complicity: The Dabhol Power Corporation
VIII. Responsibility: Financing Institutions and the Government of the United States
Appendix A: Correspondence Between Human Rights Watch and the Export-Import Bank of the
Appendix B: Report of the Cabinet Sub-Committee to Review the Dabhol Power Project
Appendix C: Selected Recommendations and Conclusions from the Parliamentary Standing Committee on Energy, May 29, 1995
Appendix D: Correspondence Between the Government of India and the World Bank
VI. The Applicable Laws
Leading activists and members of organizations representing villagers opposed to the project have been subjected to repeated short-term detention and abuse in custody by police. Most frequently those detained have been held under laws which provide for preventive detention. In many cases, they have been detained for periods ranging from several days or longer without being produced before a magistrate within twenty-four hours, as required under Indian law. During mass arrests at demonstrations in villages surrounding the project site, protesters have been beaten with canes (lathis), or otherwise assaulted by the police, in some cases sustaining severe injuries. Police have also tear-gassed peaceful demonstrations.
Governments have the right to counter any threat to public order. Human Rights Watch is also aware that some of the charges brought against activists associated with opposition to the Dabhol Power Corporation include acts of violence such as stone-throwing or breaching police barricades. However, examining the states response to opposition to the Dabhol Power Corporation, Human Rights Watch believes that the state government of Maharashtra has engaged in a systematic pattern of suppression of the rights of freedom of expression and peaceful demonstration coupled with arbitrary detentions, and beatings. In addition, police have consistently failed to investigate or prosecute reports of threats against opponents of the Dabhol Power project and have failed to prosecute the perpetrators of attacks on opponents of the Dabhol Power Project. These actions are clearly violations of international human rights law. The police have also misused preventative detention laws to detain people for the peaceful expression of their views. These arrests violate the internationally recognized rights of freedom of expression, peaceful assembly, protection against unjust arrest and detention, and police mistreatment.
Freedom of expression is protected under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which India is a party.238 In particular, the right to receive and impart information has been suppressed under the guise of protecting public order.
Similarly, by invoking sections of the Bombay Police Act, Human Rights Watch believes that the Maharashtra government has engaged in a systematic attempt to suppress the right of peaceful assembly when the reason for assembly is opposition to the Dabhol Power Project. Freedom of assembly is protected under Article 21 of the ICCPR.239
Arbitrary and illegal arrests and detention are forbidden by the ICCPR.240 Illegal arrests and detentions are by definition arbitrary; such acts can also be arbitrary if they blatantly contravene international standards of human rights and procedural fairness, regardless of specific provisions of domestic law. Basic procedural rights of persons who are arrested include the right to know the reasons for arrest, the right to be brought promptly before a judge or other judicial officer following arrest, and the right to receive a trial in a reasonable time or release.241 Victims of unlawful arrest also have an enforceable right to compensation.242
Police beatings of protesters and villagers demonstrating against the Dabhol Power project blatantly contravene the United Nations Code of Conduct for Law Enforcement Officials and the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. The U.N. Code of Conduct for Law Enforcement Officials outlines strict guidelines defining when the use of force is acceptable conduct. Article 3 of the code states that Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty. Under the code, use of force must be determined by the principle of proportionality, and in no case should force be used which is disproportionate to the final objective of law enforcement officials.243 Similarly,the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials states that the use of force should be proportional to the seriousness of the offence and the legitimate objective to be achieved and requires law enforcement officials to minimize damage and injury.244 Moreover, Section 13 of the principles states that use of force is only acceptable when policing unlawful assemblies, and in such cases stringent guidelines apply. Section 13 of the principles states that during unlawful, but nonviolent assemblies police shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.245
The Laws of India
Article 19 of the Constitution of the Republic of India protects freedom of speech, expression, peaceful assembly, association, and movement. It permits restriction of these rights in order to maintain the public order, provided that the restrictions are reasonable.
In the case of imposition of Section 37 of the Bombay Police Act in order to restrict freedom of expression and peaceful assembly, the Supreme Court of India has outlined four rules to determine whether the imposition of the law is a violation of Article 19 of the constitution. The criteria are cumulative and concurrent so that all conditions must be satisfied in order to justify a legal prohibition on freedom of expression and peaceful assembly.246 The most important aspect of the test is determining whether the legal restriction of rights enshrined in Article 19 is reasonable. The court devised a the test of reasonableness which stipulates that the court must determine whether the law strikes a proper balance between social control on the one hand and the rights of the individual on the other hand.247
Article 19 has also been interpreted by the Supreme Court as a protection against prohibitory or externment orders issued under sections 144 and 151 of the Code of Criminal Procedure when they are issued in order to curtail freedom of movement. The court has ruled that an individual must be allowed a hearing before such an order is issued. In order to adhere to Article 19, the police must allow a hearing on the order, before the order is issued.
Article 21 of the Indian constitution provide safeguards against arbitrary arrest or detention. The Supreme Court has ruled that raids similar to the police raid in Veldur on June 3, 1997, are unconstitutional because they violate Article 21. In addition, the Supreme Court has ruled in five decisions that Article 21 of the Indian constitution forbids torture, although the constitutional prohibition is not explicit.248
Article 22 of the Indian Constitution and sections 50, 56, 57, and 70 of the Code of Criminal Procedure specify that an arrested person must be told the reason for his or her arrest, and must be presented before a magistrate within twenty-four hours; otherwise the detention is illegal. To detain a person for a period longer than twenty-four hours, the police must obtain permission from a magistrate.
238 ICCPR, Article 19 states: 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certainrestrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.
239 ICCPR, Article 21 states: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
240 ICCPR, Article 9 prohibits arbitrary arrest or detention, and Article 9(5) mandates that Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation;
241 ICCPR, Article 9(2), 9(3), and 9(4).
242 ICCPR, Article 9(5).
243 United Nations Code of Conduct for Law Enforcement Officials, Article 3.
244 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Section 5(a) and 5(b).
245 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Section 13.
246 The specified rules are: (a) Whether the law imposes a restriction on the freedom in question; (b) Whether the restrictions have been imposed by law; (c) Whether the restrictions are reasonable; and (d) Whether the restriction, besides being, reasonable, is imposed for one of the specified clauses (2) to (6) of the article. Clauses (2) to (6) of Article 19 define the conditions under which laws can be imposed to restrict freedom of expression and peaceful assembly and include restrictions to protect public order or public morality, to protect the Scheduled Tribes, or to ensure operation of State-owned enterprises.
247 In order to determine the reasonableness of the law, the Supreme Court devised test criteria. The test criteria are: (a) the nature of the right infringed; (b) underlying purpose of the restriction imposed; (c) evil sought to be remedied by the law, its extent and urgency;(d) how far the restriction is or is not proportionate to the evil; and (e) prevailing conditions at the time.
248 Sunil Batra v. Delhi Administration, A.I.R., 1978 S.C. 1675; Sunil Batra v. Delhi Administration II, A.I.R. 1980 S.C. 1579, paragraphs 31 and 42; Sher Singh v. State of Punjab, A.I.R. 1983 S.C. 465, paragraph 11; Javed v. State of Maharashtra, A.I.R. 1985 S.C. 231, paragraph 4. In Sita Ram v. State of U.P., A.I.R. 1979 S.C. 745, the Supreme Court ruled that: An undertrial or convicted prisoner cannot be subjected to a physical or mental restraint (a) which is not warranted by the punishment awarded by the court, or (b) which is in excess of the requirements of prisoners discipline, or (c) which constitutes human degradation.