PUCL Petition to NHRC Urges Inquiry in the Case of Human Rights Defenders Teesta Setalvad and Javed Anand

The following is the text of the PUCL petition to NHRC in the case of Teesta Setalvad, Javed Anand and the Citizens for Justice and Peace

PEOPLE’S UNION FOR CIVIL LIBERTIES

270-A, Patpar Ganj, Opposite Anand Lok Apartments, Mayur Vihar I, Delhi 110 091 Phone 2275 0014 PP FAX 4215 1459 Founder: Jayaprakash Narayan; Founding President: V M Tarkunde President: Prof. Prabhakar Sinha; General Secretary: Dr. V. Suresh

E.mail: puclnat@gmail.com; pucl.natgensec@gmail.com

7th June, 2014

TO: THE HON‟BLE CHAIRPERSON AND HON‟BLE MEMBERS,

NATIONAL HUMAN RIGHTS COMMISSION,

Manav Adhikar Bhawan Block-C, GPO Complex,

INA, New Delhi – 110023

 

SUB.: SEEKING AN INDEPENDENT REVIEW AND INTERVENTION IN RESPECT OF CONTINUING PERSECUTION AND PROSECUTION OF HUMAN RIGHTS DEFENDERS, TEESTA SETALVAD AND JAVED ANAND OF CITIZENS FOR JUSTICE AND PEACE AND OTHERS

Ref. (1) UN Declaration on the Rights and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms, UN GA, 8th March, 1999. (2) UN Declaration on Protecting Human Rights Defenders, 15th March, 2013 (3) Resolution and Recommendations of NHRC with regard to protection of human rights defenders, 2009.

Index

A. Introduction and Background ………………………………………………………………………………………………… 2

B. International and National Human Rights Obligations ………………………………………………………………. 3

C. The role of CJP and its Trustees in safeguarding Rule of Law and the Constitution, as revealed by the orders of various courts ……………………………………………………………………………………………………………… 6

D. Interest of Gujarat police in matters against CJP and its Trustees ………………………………………………. 7

E. Prosecution Proceedings against Teesta Setalvad, Javed Anand and CJP …………………………………….. 8

F. Need of an Independent Enquiry and Review ………………………………………………………………………….. 9

G. Prayer ………………………………………………………………………………………………………………………………. 10

ANNEXURE -1 ………………………………………………………………………………………………………………………….. 12

List of Criminal Cases pursued by CJP team ……………………………………………………………………………. 12

ANNEXURE -2 ………………………………………………………………………………………………………………………….. 15

Legal Interventions by CJP, and its trustees Teesta Setalvad and Javed Anand …………………………… 15

ANNEXURE -3 ………………………………………………………………………………………………………………………….. 25

Table of Prosecutions / Proceedings launched against Teesta Setalvad, Javed Anand, CJP and Sabrang Trust …………………………………………………………………………………………………………………… 25

ANNEXURE -4 ………………………………………………………………………………………………………………………….. 27

Excerpts: Registrar General Supreme Court of India Shri BM Gupta’s Report in Crl.M.P. NOS 6658-6661, 11884-11887-12515-12518 & 12519-12522 in CRL Appeal Nos 446-449/2004 (Zahira Habbullah Sheikh & Anr v/s state of Gujarat & Ors) ……………………………………………………………….. 27

Sir,
A. Introduction and Background

1. The People’s Union for Civil Liberties (PUCL) has been consistently working for protecting and upholding the human rights as well as civil liberties of the people and has been intervening before this Hon’ble Commission and the Courts. Under the International Human Rights Principles, it is duty of every State to protect the human rights defenders. In fact, it is right and responsibility of every individual, groups and organs of society to promote and protect universally recognised human rights and fundamental freedoms. The UN Declaration of protecting human rights defenders was adopted by UN General Assembly in 2013 urging the States to acknowledge publicly the important and legitimate role of human rights defenders and the promotion of Human rights, democracy and the rule of law. In this regard, we may also refer to the report of the UN Special Rapporteur Margaret Sekaggya on human rights defenders, (2013) which was presented before the UN Human Rights Council wherein the obligation cast on the Member States was highlighted to ensure that Human Rights Defenders can conduct their work in a peaceful manner and that no administrative and legislative provisions are used to restrict the rights of defenders in order to show respect to the International Human Rights Law.

2. This Hon’ble Commission has adopted, among others, the following recommendation regarding human rights defenders in October, 2009:

“(i) It is the obligation of the State to protect human rights of all. Individuals, groups or associations who work for promotion and protection of human rights, commonly referred to as Human Rights Defenders, should also be provided protection by the State against any violence, threats, retaliation, adverse discrimination, pressure or any arbitrary action as a consequence of their activities for promotion and protection of human rights and fundamental freedom. NHRC and SHRCs can also play an important role in this regard.”

It is in this context that the PUCL is concerned about the prosecution and persecution of Teesta Setalvad, Javed Anand and others of the Citizens for Peace and Justice, who had taken up the issues of the victims of Gujarat riots which took place in the year 2002. It was their intervention before the Hon’ble Supreme Court and other courts which ultimately led to over 110 conviction so far with other trials nearing completion. It was this Hon’ble Commission which had challenged the acquittals of all the accused in Best Bakery Case before the Hon’ble Supreme Court and had sought transfer of important cases outside the State of Gujarat; the Citizen for Justice and Peace was also one of the Petitioners in the case. The Best Bakery case was transferred to Mumbai and eventually the trial court has convicted 9 persons. The efforts made by them are required to be appreciated as they acted for defending and protecting the gross human rights violations of the victims of 2002 riots. It is the duty of the State of Gujarat and all its administrative organs to protect Teesta Setalvad, Javed Anand & others of CJP in defending the legal constitutional and human rights of the victims of Gujarat Riots and to provide them protection as envisaged in the United National Human Rights Documents, which is also endorsed by this Hon’ble Commission.

B. International and National Human Rights Obligations

3. As stated earlier under international human rights principles there is a duty cast upon every State to accord adequate protection to human rights defenders. The United Nations “Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms” (March, 1999) acknowledges that human rights defenders play a very important role in the promotion and protection of human rights and it is the duty of every State and its administrators to avoid criminalisation, stigmatisation, impediments, obstructions or restrictions on the work of human rights defenders. The UN expressed its grave concern that in some instances national security and counter terrorism and other measures have been misused to target human rights defenders or have hindered their work and endangered their safety contrary to international law.

4. Art. 18 of this Declaration stresses that “individuals, groups, institutions and non-governmental organisations have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes”.

5. The UN Declaration on Protecting Human Rights Defenders adopted by the UN General Assembly in 2013 urged States to acknowledge publicly the important and legitimate role of human rights defenders in the promotion of human rights, democracy and rule of law. The declaration also urges States to create a safe and enabling environment for human rights defenders to extend support free from hindrance and insecurity. The Declaration specifically called upon States to ensure procedural safeguards are in place, including in criminal cases, against human rights defenders … so as “to avoid the use of unreliable evidence, unwarranted investigations and procedural delays”.

a. Report of the UN Special Rapporteur

6. The Report of the UN Special Rapporteur Margaret Sekaggya on the situation of human rights defenders, (2013), as presented before the UN Human Rights Council also deals with human rights defenders and recommends:

“Member States should: (a) Ensure that defenders can conduct their work in a conducive legal, institutional and administrative framework. In this vein, refrain from criminalizing defenders’ peaceful and legitimate activities, abolish all administrative and legislative provisions that restrict the rights of defenders, and ensure that domestic legislation respects basic principles relating to international human rights law and standards; (b) Combat impunity for violations against defenders by ensuring that investigations are promptly and impartially conducted, perpetrators are held accountable, and victims obtain appropriate remedy. In this context, pay particular attention to violations committed by non-State actors; ……
(e) Ensure that violations by State and non-State actors against defenders, particularly women defenders, are promptly and impartially investigated, and ensure that perpetrators are brought to justice. Furthermore, provide material resources to ensure the physical and psychological protection of defenders, including through gender-sensitive polices and mechanisms; (f) Publicly acknowledge the particular and significant role played by women human rights defenders, and those working on women’s rights or gender issues, and make sure that they are able to work in an environment free from violence and discrimination of any sort;”

b. National Human Rights Obligations
7. The Hon’ble NHRC, has adopted, amongst others, the following recommendation regarding human rights defenders in October 2009:
(i) It is the obligation of the State to protect human rights of all. Individuals, groups or associations who work for promotion and protection of human rights, commonly referred to as Human Rights Defenders, should also be provided protection by the State against any violence, threats, retaliation, adverse discrimination, pressure or any arbitrary action as a consequence of their activities for promotion & protection of human rights & fundamental freedom. NHRC and SHRCs can also play an important role in this regard. “

8. The Hon’ble Commission had also recommended that:
(iv) There is a need to set up a Focal Point for human rights defenders, preferably at NHRC, so that human rights defenders can reach out to it for support. The focal point should be accessible through a phone no. or email etc.
(v) For protection of human rights, modern technology like satellite T.V. coverage and SMSs etc. could be effectively utilized. Print media and electronic media can play an important role in this regard.
(vi) Complaints of harassment of human rights defenders could be posted on NHRC/ SHRC websites to draw specific attention of the people to such cases.
(vii) The UN Declaration on the “Rights and responsibilities of Individuals, Groups and Organisations of society to promote and protect universally recognized human rights & Fundamental Freedoms” adopted by the General Assembly in 1998 should be disseminated to the Chief Secretaries and Directors General of Police of all States and UTs as also other Government functionaries. Likewise, other National and State Commissions/ institutions related to human rights issues should also be apprised about the aforementioned declaration and other important international covenants and instruments.
(viii) NHRC may consider including cases of violation of rights of human rights defenders along with action taken thereon in a section of its annual report.
(ix) NHRC may consider writing to the Government of India for granting permission to UN Special Rapporteur on human rights defenders to visit India.
Keeping in mind the letter and spirit of the Indian Constitution, UN Declarations specifically protecting human rights defenders, recommendations of the Hon’ble NHRC (2009), as well as the Report of the UN Special Rapporteur on the situation of human rights defenders (2013), and the Protection of Human Rights Act, 1993, PUCL would like to highlight that CJP and its office bearers Teesta Setalvad, Javed Anand and their team of human rights defenders have under threats of grave risk to their personal safety, ensured that the rule of law prevailed in the state of Gujarat at a time when the entire state machinery was subverted and all public officials either abdicated their constitutional and statutory functions or worse connived / actively participated with the perpetrators of terror and violence. It is pertinent to point out that even as they strived to establish the rule of law and ensured that perpetrators were punished, a slew of complaints and FIRs were foisted against them. Many complaints were later found to be unfounded. While we do not want to comment on the specifics of any of the pending complaints we are of the firm belief that the complaints against CJP, Teesta and Javed Anand have to be appreciated in the larger continuum of facts and events.

C. The role of CJP and its Trustees in safeguarding Rule of Law and the Constitution, as revealed by the orders of various courts

9. ANNEXURE -1 to this petition is the table of cases, which the Citizens for Justice and Peace and its trustee Teesta Setalvad pursued in different courts seeking accountability and justice. ANNEXURE-2 are detailed notes on the interventions made by these human rights defenders. It may not be out of place to state that but for their sustained efforts the criminals who indulged in heinous crimes would not have been brought to book.

10. Amongst the numerous cases pursued by Teesta Setalvad and the CJP, one of the most noteworthy cases is the Best Bakery case which initially ended in a total acquittal of all the accused, got a fresh lease of life when an important eye witness to the incident Ms. Zahira Sheikh approached Teesta Setalvad and the CJP saying she had been coerced to resile on her eye witness testimony. After diligently verifying the authenticity and veracity of her claim, the CJP facilitated her to record her statement before a Full Bench of the National Human Rights Commission (NHRC). In an unprecedented move, the NHRC challenged the acquittals before the Supreme Court and sought a transfer of key criminal cases outside the state of Gujarat. CJP was also one of the petitioners in the case. Not only did the SC order fresh trial but eventually the trial court went on to convict 9 of the accused persons. (please see table 1, Annexure 1) The apex court also directed appointment of Special Public Prosecutors to prosecute the Gujarat riot cases. As Table 1 shows, the combined efforts of Teesta Setalvad and the CJP team have secured more than 110 convictions so far with many other trials nearing completion.

D. Interest of Gujarat police in matters against CJP and its Trustees

11. It is necessary to point out here, that it was in the context of convictions of people owing allegiance to the ruling dispensation, including conviction of policemen and politicians that allegations and complaints against CJP and Teesta Setalvad were vigorously pursued by Gujarat Police. Without going into the merits of the complaints we would like to point out that the complaints against CJP and Teesta have to be examined closely and cautiously in the light of the more than decade long struggle that she and her organisation had waged against the Gujarat State agencies, especially the police and law enforcement agencies.

12. PUCL would also like to point out that such complaints tend to discredit human rights defenders in the public eye thereby making their task as human rights defenders more onerous and difficult to discharge. It cannot be gainsaid that allegations of financial impropriety are easy to make; but the damage such allegations cause to individual reputation and self respect is irreparable. Very often though nothing much comes out of such allegations finally, the allegations would well have achieved their purpose of putting the individuals and organisations concerned on the defensive and force them to necessarily participate in an endless spiral of litigation trying to prove their innocence. Apart from diverting defenders from the main task of protecting, promoting and preserving human rights work, immense amounts of time, physical and emotional energy, and finances are lost in fighting malicious prosecutions and litigations.

E. Prosecution Proceedings against Teesta Setalvad, Javed Anand and CJP

13. PUCL is of the opinion that keeping in mind the background circumstances in which FIRs against CJP and Teesta Setalvad are being filed and pursued there is a need to have an independent review of all the cases filed against CJP, Teesta and others by the Hon’ble NHRC. The importance of having a comprehensive review of the entirety of cases pursued by Teesta Setalvad and the CJP and the manner of hurdles thrown in their path can be better appreciated when we consider the type of allegations and prosecutions launched against her as listed in the table reproduced in ANNEXURE 3.

14. A case in point is the allegation made by Zahira Sheikh, the eye witness in the Best Bakery Case; even as the retrial was going on, suddenly on 3rd November, 2004 Zahira Sheikh in a Press Conference in Vadodara alleged that she had been kidnapped by Teesta Setalvad and forced to testify in court against the accused. Within just 2 days, on 5th November, 2004 Teesta Setalvad herself approached the SC seeking a high level enquiry into the allegations against her. The Registrar-General of the Supreme Court of India was appointed by the Apex Court who after an elaborate enquiry found the allegations against Teesta Setalvad by Zahira Sheikh to be baseless. While the exoneration helped the CJP to concentrate on its human rights work, valuable time, resources and energy were wasted in the effort. The excerpts of the Registrar General Supreme Court of India, Shri BM Gupta’s Report in Crl.M.P. NOS 6658-6661, 11884-11887-12515-12518 & 12519-12522 in CRL Appeal Nos 446-449 / 2004 (Zahira Habbullah Sheikh & Anr v/s state of Gujarat & Ors) is annexed here with as ANNEXURE – 4.

Courts have also categorically exonerated Teesta Setalvad, Javed Anand and others from any allegations of tutoring witnesses.

16. Another example of the misuse of the investigative powers of the Gujarat Police can be found in the private complaint case filed by one Raees Khan (No. 37/12 dtd 20.06.2012, No. 10/12 dtd 23.07.2012) This simple defamation case, was used to conduct a roving Inquiry by the DCB Crime Branch, Ahmedabad. This roving Inquiry has been challenged in a petition before the Hon’ble High Court of Gujarat (SCA No 2825/2012).
F. Need of an Independent Enquiry and Review

17. In this context when repeated allegations against Teesta Setalvad, Javed Anand and the CJP were found to be without substance, there is a duty and an obligation cast upon the Government of Gujarat, the Central Government, the judiciary, human rights bodies as well as the civil society to ensure that human rights defenders like Teesta Setalvad, Javed Anand and CJP are protected and they are not hindered in their work by having to overcome repeated complaints. There has to be accountability for unfounded criminal proceedings; especially when the ‘persecutors’ are themselves those who are the ‘law protectors’ and prosecutors. It is no solace that the allegations are rejected or that Ms. Setalvad or other human rights defenders are acquitted by courts of law.

18. The UN Declaration on Human Rights Defenders (2013) recognises the dangers faced by human rights defenders even as it expresses its concerns that there are instances when “national security and counter terrorism legislation and other measures, such as laws regulating civil society organisations, have been misused to target human rights defenders or have hindered their work and endangered their safety in a manner contrary to international law”. (emphasis ours)

19. Furthermore the Hon’ble NHRC has also stated in its recommendations regarding human rights defenders that it will become the focal point for human rights defenders to whom they can reach out to phone/email etc. The current enquiries in that context.

20. It is pertinent to mention that the Teesta Setalvad, Javed Anand and others associated with CJP have had a long record of working with the Hon’ble NHRC, on issues of human rights and have been instrumental in bringing the Hon’ble Commission’s attention to matters that need its attention and intervention.

G. Prayer

In the facts and circumstances stated hereinabove it is most respectfully prayed that this Hon’ble Commission may be pleased to:
(i) Review all the cases filed against Citizens for Justice and Peace and its Trustees Teesta Setalvad, Javed Anand in the light of the UN Declaration on Human Rights Defenders and other relevant laws.
(ii) Pending such review recommend that the Government of Gujarat refrain from initiating any coercive action such as arrest, freezing of accounts etc or in any manner hindering the work of the human rights defenders mentioned above;
(iii) To create a mechanism by which all complaints, as may arise, against human rights defenders like Teesta Setalvad, Javed Anand, CJP team and others are first referred to this Hon’ble Commission before initiating any further action on such complaints so as to ensure that their useful work to secure human rights is not hindered by such complaints in future;
(iv) Recommend the initiation of criminal and disciplinary action against all policemen, prosecutors and government officials, and individuals against whom there is prima facie evidence of mala fide actions against human rights defenders like Teesta Setalvad, Javed Anand and others.
(v) Intervene in the matters/cases referred above, going on against human rights defenders Teesta Setalvad and Javed Anand so as to protect their rights as human rights defenders

(vi) Take all other appropriate and necessary actions in respect of protecting human rights defenders, as per international and national human rights obligations;

(Dr. V. Suresh)
National General Secretary
Peoples’ Union for Civil Liberties

 

4 thoughts on “PUCL Petition to NHRC Urges Inquiry in the Case of Human Rights Defenders Teesta Setalvad and Javed Anand”

  1. yes..Certainly.The petition is very much in the right direction.the space for defending the human rights has been narrowing during the recent past. the defenders are facing risks to their very existence. there have been many cases of murders and assaults besides false cases against them .at the same time there are not very many people and organisations to support these defenders of human rights.it is very difficult to carry on the fight for the protection of human rights.besides hundreds of violations of human rights go unchallenged.the bodies like pucl are doing yeoman service to the unprotected citizens of tge country.

  2. I support this petition. Protection of human rights and human rights defenders are absolutely critical for a civilised and democratic polity.

  3. it is absolutely right decision from PUCL and the Hon’ble judges are human being all ways commit violation of human rights which was accepted by supreme court in various cases and NHRC also working very short vision, it should reconsider is Regulations amendments and it functions were self restriction on human rights violation in our country.

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