Review of India: Country of Origin (COI) Report (Home Office UK Border Agency COI Service) dated May 2012 Prof. Dr. Livia Holden1 15 December 2013 1. Introduction
On the 6th November 2013 I was commissioned the reviews of India: Country of Origin (COI) Report (Home Office UK Border Agency COI Service) dated May 2012 and of the Operational Guidance Note India by Chief Inspector of Borders. These reviews are provided hereby as two separate documents. As per the terms of reference2 the present review evaluates India: Country of Origin Information in the context set out in its introductory section and seeks to identify any areas where it can be improved. Specifically this review entails:
 Assessing the extent to which information from source documents has been appropriately and accurately reflected in the COI Report, Identifying additional sources detailing the current human rights situation Noting and correcting any specific errors or omissions, 1 Prof. Dr. Livia Holden is Dean of the Faculty of Humanities and Social Science and Chair of the Department of Behavioural Sciences at the Karakoram International University. She holds a Master and an M.Phil from the University of Paris 10 – Nanterre and a PhD in Law and Social Sciences from SOAS - University of London. Prior to Karakoram Internatinal University, she has worked at Freie University, Humboldt University, Griffith University and LUMS. She has research affiliations with the Law Department of the University of Otago, the University of California at Berkeley. She is Visiting Scholar at the European Ethnology Department at Humboldt University and at the Johann Wolfgang Goethe University. Her research focuses on state law, religious law, and mixed sources of law, especially for their implications with gender, human rights and governance in South Asia and in the diasporas. She has provided consultancies and expertise in anthropology of law, anthropology of borders, qualitative research methods, ethics, human rights, institutional development, asylum and immigration related cases in the US and UK courts. She is the author of Hindu Divorce and the editor (and contributor) of Cultural Expertise and Litigation. She has also realized two documentary-films, Runaway Wives and Lady Judges of Pakistan, and contributed with chapters and papers to collected volumes and journals such as the Journal of Legal Pluralism, South Asia Research and the International Journal for the Semiotics of Law. Her teaching portfolio includes International Human Rights, Qualitative Research Methods, Mountain Areas and Development, Anthropology of Corruption, Anthropology of Law, South Asian Diasporas, Lawyering and Legal Practice, and Cultural Expertise and Litigation. (accessed 9 December 13). Making recommendations for general improvements regarding, for example, the structure of the report, its coverage or its overall approach. 2. Overview
This reviewer finds that India: Country of Origin Information 2012 (hereafter referred to as India: COI 2012) includes an extensive array of online sources on a significant list of relevant topics. Such an endeavor is particularly impressive if one considers the size and the cultural and socio-political variance of India. It is clear that the authors of India: COI 2012 have used and cited appropriate sources and dutifully updated the available information over the years. Generally speaking this reviewer finds that the information from source documents has been appropriately and accurately reflected in India: COI 2012. Nevertheless, given the well-known socio-political instability of South Asia it is to be expected that much of the information contained in India: COI 2012 needs update. While oversights and clarifications are occasionally pointed out, the bulk of my suggestions concern additional sources detailing the current human rights situation in I found only minor errors in India: COI 2012, but repetitions and overlapping occur – sometimes making the information to appear as scattered, conflicting, and difficult to consult. Most of the time this is due to the complexity of the issues treated, which necessarily touch at more than one of the listed topics. Hence I have suggested extra cross-references. Another general remark of mine is that extracts from the original legal texts and academic sources would help, sometimes, to better understand the context of the information provided by India: COI 2012. In similar vein the use of information from the US State Department - which recur in 88 instances - may be alternated and/or complemented with sources that are more authoritative on the basis of the topic under consideration. Detailed suggestions have been formulated on this regard but, from a general perspective, I submit that the use of a slightly greater diversification of sources (possibly including academic sources) is necessary to a balanced understanding of information and facts that are impacted by important cultural, historical, and political factors. COIS: Thank you for the positive comments. We are currently updating the India Country Report and your suggestions and the additional source references given below are very helpful. COIS is grateful to the Reviewer for taking the time to identify 1. Page-by-page Suggestions
The current table of contents is quite exhaustive. Nevertheless "dacoity" as additional entry is submitted for consideration. Sec. 391, Indian Penal Code 1860 defines dacoity: "When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity"." Sec. 395 of Indian Penal Code states that "Whoever commits dacoity shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." In some areas of India Dacoity groups have challenged the authority of the state and engaged in politics as well. Perhaps the most recent example has been the Dacoity of the Chambal Valley in Madhya Pradesh but new versions of dacoits and their exploitation accessed 10 December 13. COIS: Accepted. Thank you this information is useful and will be included in future India COI reports. p.10 India COI 2012 is unclear about the current boundaries between India and Pakistan with regard to Jammu and Kashmir of which a part is called Azad Kashmir by Pakistan and is divided from India by the Line of Control, de facto border designated by the Simla agreement in 1973. A map might be added also. Both countries regularly accuse one another of infiltration and indiscriminate firing causing the death of both military and civilians. Se accessed 14 December 13. COIS: Accepted. This additional information would have been appropriate in Section References to micro-credit failures and the wave of suicide that followed amongst the farmer should be added. See for ex. accessed on 10 December 13. COIS: Partly accepted. A proper discussion of micro-credit should also include its benefits, and would have been too lengthly to include in the Economy section. The high suicide rate among farmers should probably have been covered elsewhere in the report; micro-credit debt is one of several factors related to this. p.16-18 3 History Important facts, some of which are cited in Annex A, could be included here. The wars against Pakistan: Indo–Pakistani war of 1947 (also called "First Kashmiri War") Indo–Pakistani war of 1965 Indo-Pakistani war of 1971 (also called "Bangladesh Liberation War") Indo-Pakistani war of 1999 (also called "Kargil War") Dalai Lama‟s exile in Dharamsala. accessed 14 December 13. The war against China. India-China war of 1962: accessed 14 December 13. Atomic capability of India. accessed 14 December 13. The Sikh Golden Temple‟s siege of 1984 (also known as Operation Blue Star) which is mentioned later by the India Coi 2012 but should appear here as well. The role of Narendra Modi in the financial development of Gujarat. accessed 14 December 13. The role of Narendra Modi in the Gujarat riots. accessed 14 December 13. COIS: The History section, which was previously more detailed and bloated the overall size of the Report, has been reduced to focus on information which may be more relevant to the asylum decision making process. 4 Recent Developments Overview of significant events, June 2010 to March 2012 4.02 The "Multidimensional Poverty Index" appears to be a study and not an event. 4.03 This section might be cross-referenced with p. 158 (29.03-29.04) for which integration and update is suggested later in this review. COIS: It was cross-referenced to 29.03 4.05 - 4.11 These are not events. COIS: We are unclear about what the Reviewer means by „events‟. These appear to us to be events (noteworthy „happenings‟). This is the only hint to the Samjota express burning that triggered the Gujarat riots of 2002. The trial regarding Narendra Modi should be mentioned. See COIS: Partly accepted. This should have been cross-referenced to Section 20 (paragraphs 20.17- 20.22) where the train burning and subsequent riots were covered. The article cited above appears to indicate that Narendra Modi‟s indictment took place after COI 2012 was published. This section should be updated with Anne Hazare movement and hunger-strike as well as the recent information on the anti-corruption bill as indicated later in this review for p. 88. 19.08. This information should be updated with the recent decision by the Supreme Court that sets out the Delhi High Court order declaring gay sex as illegal. See accessed 11 December 13. Here is the text of the Supreme Court judgment: COIS: Thank you. COIS has been trying to locate the full text of the judgment! The Attorney General has expressed a view in the press against the Supreme Court's 6. Political System This recent article outlines the specificities of the India federal system: 7.1 Recent executions took place in the last two years: Ajmal Kasab 21 November 2012 (Mumbay attacks) Afzal Guru 9 February 2013 (Delhi bombing). The list of the treaties not signed by India should be added: This section needs to be expanded. For an article outlining the position of India in relation to international treaties and the UN especially for its reluctance to sign any convention against caste based discrimination see: COIS: Accepted. p. 32 8. Internal Security Situation 8.02 "…occasional use of extrajudicial methods … India has successfully managed …" This statement from Jane‟s Sentinel suggests that widely criticized practices such as extrajudicial methods are acceptable. COIS: Accepted. This should have been cross-referenced to Section 9, „Human Rights violations by security forces‟. This analysis might be weighted with further information. See for ex. accessed 14 December 13. See also sec. 9.26 as below in this review. 8.04-8.6 Among the recent Naxalite‟s attacks: The kidnapping and subsequent release of Italians in March 2012 accessed 14 December 13. The kidnapping of a District administrator in April 2012, accessed 14 December 13. The killing of a Congress Leader in May 2013 accessed 14 December 13. In this section the India COI 2012 relies only on Jane‟s Sentinel and SATP. It would be useful to add some background history outlining the socio-economic conditions that fuel the conflict. See for ex.: in March 2012 December 13; in July 2012 For a short history of Naxalite insurgency see: accessed 14 December 13. For a longer and more detailed overview see : accessed 14 December 13. p. 35 8.9 It might be added that in February 2010 the number of militants in Jammu and Kashmir was estimated to 500. See accessed 14 December 13. India COI 2012 cites "the Pakistan-backed Islamist terrorist campaigns" from the SATP (assessment 2011). This information should be updated with SATP assessment accessed 14 December 13. The increasing criticism to the Indian state‟s accusations against the so-called Pakistan-backed terrorism and Pakistan‟s recent foreign policies should be included here. See for ex.: 738, accessed 14 December 13. India COI 2012 cites the 2011 SATP Assessment and states that the security situation in the North East areas is improving. However the cited assessment omits to mention the violence between Garo and Rabha people in Assam and Meghalaya that displaced about 50,000 people between December 2010 and January 2011. See for ex. accessed 14 December 13. The situation seems to have deteriorated i accessed 14 December 13. Most recent news show unresolved conflicts and accessed 14 December 13. This section on Extremist Hindu Nationalist Groups needs to be expanded. In particular the role of Hindu extremists in the Gujarat riots of 2002 should be mentioned. See p. 19 of the following Human Righta Watch‟s report: accessed 14 December India COI 2012 quotes SATP stating that "… no incident of suspected Hindutva terror was recorded in 2008, 2009 or 2010, …". Nevertheless some incidents linked to Hindu terrorism have been reported during that same period: See for ex.: Malegaon blast of 2008: Goa blast of 2009: accessed 14 December 13. Attack on Christian in Orissa, 2008 and 2012: accessed 14 December 13. accessed 14 December 13. For an overview of Hindu militants groups see p. 19 of the Human Rights Watch report The Anti-Nationals: Arbitrary Detention and Torture of Terrorism Suspects: accessed 14 December 9. Security Forces p. 37-39 9.01-9.05 For an overview of the police‟s structure in India see accessed 14 December 13. COIS: This is a helpful source – and it directs the reader to another very useful This section should also mention the role and competence of the District Tax Collector who has, among other, judicial authority as district magistrate and supervises the police and jails, especially for what concern preventive sections of the Criminal Procedure Code, and manages the situation of natural disasters and law and order crises. Unfortunately no authoritative sources were found by this reviewer. As an exception and with appropriate caution the following source might be cited: accessed 14 December 13. But as an example of the significant role of the collector see the following excerpt: When the mining company applies for the lease, the application asks: does the applicant have surface rights? If not, has the consent of the owner/occupier been obtained? If the answer to these questions is no, then the application should be sent back immediately to obtain those consents. But instead, the mining company writes: "consent will be obtained," and gets through this giant loophole that says "consent may be given after lease, but before entry." So the government comes to the rescue of the mining company. The Tehsildar (a revenue official lower in rank to the District Collector) posts notice listing out all the plots in the lease, saying – come and collect your compensation as per the Land Acquisition Act. They don‟t tell people that they have a choice not to consent. Normally people take it as a fait accompli. They come and take the compensation, and their consent is then assumed. In cases where villagers take the compensation, they try to buy land in other villages, and often the local people there see them as outsiders and don‟t let them settle. But the people of Kosampalli are saying, "No amount of money can compensate us if you take away these last lands for mining, because we won‟t be able to live here any more." Our legal office managed to get a stay on the mining, and it‟s fixed for final hearing. accessed 14 December 13. 9.13-9.14 Paramilitary forces and centralised police organisations subordinate to the Ministry of Home Affairs This section should mention or cross-reference with sections 9.22-9.24 ("Human Rights violations by security forces") the abuses by the Border Security Forces. See the document published by the US Department of State (April 2011): 9.15 Central Reserve Police Force (CRPF) This section should mention or should cross-reference with sections 9.22-9.24 ("Human Rights violations by security forces") the abuses by CRPF. See the violence committed by the CRPF in Kashmir accessed 14 December See also the involvement of CRFP in the killing of alleged Maoists on the 28 June accessed 14 December 13. 9.19-9.21 Paramilitary and other forces. This section as well as the following sections on Naxalites (Maoists) 11.02-11.08 would benefit from an overview of the relationship among state, non-state forces, and For a recent report on the same topic see: 9.22-9.24 Human rights violations by security forces see updates as above (9.13-9.14, 9.15, 9.20-9.21) 9.26 Extra judicial killings This section quotes the USSD 2010 Reports stating that "there was no current data regarding custodial death". This statement should be compared with data collected by accessed 14 December 13. A report by the Asian center for Human rights in date of November 2011 already provided data on extrajudicial killings at the date of publication of COI India 2012: accessed 14 December 13. COIS: Not accepted. The ACHR report made sweeping and erroneous statistical assumptions, as confirmed by the 2013 National Human Rights Commission report: For example, although the actual incidence of torture in custody may be higher than the number of cases reported, it is clear from the 2013 NHRC report that most deaths in prisons are from natural causes. (The ACHR report had claimed, "A large majority of these deaths [in custody] are a direct consequence of torture in custody.") Furthermore incentives for extrajudicial killings were exposed in 2008. See for ex.: accessed 14 December 13. 9.28-9.33 Arbitrary arrest and detention Related to the Ahmedabad bombing of 2008 COI India 2012 mentions arbitrary detention as influenced by religious affiliation (9.31 p. 46). Recent confirmations of this trend are reported in the following article published in March 2013. accessed 14 December 13. 9.34-9.41 Torture This section should mention that India signed but did not ratify the UN convention against torture: accessed 14 December 13. Several sources agree on the inadequacy of the existing legislation against torture in COIS: Thank you. COI India 2012 reports here data from the National Human Rights Commision 2011 (as cited by the Asian Centre for Human Rights (ACHR)). The accuracy of these data for what concerns custodial death is challenged by a report of the Asian Centre for Human Rights that provides with a worse scenario: accessed 14 December 13. COIS: This is the same ACHR report as the one referred to above. In quoting from it, COIS took care not to confuse statistics as the ACHR had done. 9.44 Excessive use of force and other abuses in internal conflict areas. The COI India 2012 reports a military contingent of 500.000. The number of troops deployed in Jammu and Kashmir appears to remain officially undisclosed. Some sources states of a military contingent up to 700.000, others between 300.000 and 500.000, while the number of militants appears to be 500 (see accessed 14 December 13). 9.45-9.47 Avenues of complaint This section could expand on the access to and feasibility of complaints against police or others state forces. See for ex.: accessed 14 December 13. COIS: Thank you. We were not aware of the 2011 update of this report, and instead quoted from the previous version in para 9.47. At sec. 9.46 COI India 2012 cites the United Nations Special Rapporteur on the Situation of Human Rights Defenders who noted in her report dated 6 February 2012 that out of 1388 abuses investigated between 1994 and 2010 only 80 cases revealed to be genuine. The US Department of State in date 8 April 2011 stressed the widespread impunity among all level officials: "Officers at all levels acted with impunity, and officials rarely held them accountable for illegal actions. Military courts investigated cases of abuse by security officials. When a court found an officer guilty of a crime, the punishment often was a transfer. According to the MHA's 2008-09 report, citizens filed 1,185 reports of human rights violations countrywide against army and central paramilitary personnel. Authorities investigated 1,162 cases, found 1,129 false, and judged 33 genuine. The military imposed penalties on 69 individuals and awarded compensation in six cases." (see 9.48-9.51 National and state human right commissions This section should mention the difficult access to national and state human rights accessed 14 December 13. - Information on the configuration and competence of the judiciary should be extracted from the Constitution of India (chapter IV). - Additional information: The role of Supreme Court and upper judiciary as theoretically exceeding its constitutional mandate is explained with the notion of judicial activism of which the socio-legal scholarship on South Asia is well aware (see the address by Hon‟ble Mr. K.G. Balakrishnan, Chief Justice of India (Trinity accessed 9 December 13) accessed 14 December 13 Sathe, S.P. (2002) Judicial Activism in India: Transgressing Borders and Enforcing Limits, New Dehli: Oxford University Press. Serajuddin, Alamgir Muhammad (2011) Muslim Family Law, Secular Courts and Muslim Women of South Asia, Karachi: Oxford University Press. Pearl, David and Werner Menski (1998) Muslim Family Law, Sweet & Maxwell. COIS; thank you, this has been noted. p. 63 Lok Adalats („People‟s Courts‟) 12.07 The Lok Adalat mentioned in Karthyaeni.V and Vidhi Bhatt provides only with a partial view of the arbitration courts in India. Panchayat is a traditional jurisdiction widespread in South Asia in a variety of forms of which the Lok Adalat is but one. Art. 243 of the Constitution sets the composition and the competence of the so-called statutory panchayats as organs of self-governance adopted in all states of India after Independence on inspiration from the traditional forms of governance and dispute settlement. Following the laws of the states of the federation, panchayats may also have minor judicial competence. A considerable number of courts of arbitration and/or adjudication in India have de facto or by law judicial competence that may extend to criminal law also (see among other the reference to khap panchayat in India COI 2012). Panchayat and other jurisdictions either state/ NGO sponsored such including lok adalat and maheela adalat (women‟s court) or caste based such as jati panchayat or community based such as khap panchayat deserve attention for their adverse implications on human rights but also for the recognition of their decisions by state law in India – sometimes with a positive impact of panchayat (see Holden, Livia (2008) Hindu Divorce, Aldershot: Ashgate, chapter 4) - and among diasporic communities (see Holden, Livia (2011) „Expert Report Writing: Professional Commitments and Legal Outcomes‟, in Cultural Expertise and Litigation: Patterns, Conflicts, Narratives, Holden, Livia ed., London: Routledge). Unfortunately to date there is no comprehensive compendium on panchayat and alternative jurisdiction in India. While such a study is awaiting publication the following concise historical overview might be of help (Holden 2008: 82, note 5): From 1920 until 1947 the British implemented the village councils, panchayat, with competence in minor penal and civil matters. The Constitution of India [1947] (art. 50) provided the village councils with separate bodies for judiciary, nyaya panchayat, and executive competence, gram panchayat. The widespread failure of the judiciary councils let to their suppression at the same time as the limited inclusion of their competence in the hands of the statutory council with executive competence. However, both the British and the post-Independence attempts at restoring traditional justice in India were far from the local legal values by which they should have been inspired. […] Yet, in many villages of South Asia justice is de facto almost independently administrated by two councils: the statutory panchayat, based in principle on permanent elected members, and the traditional panchayat, whose authority is not state-related but linked to the caste or other contextual source of power, and whose composition relies on both the features of the case and the people involved. See also: Basu, Srimati (2012) Judges of Normality: Mediating Marriage in the Family Courts of Kolkata, India Signs Vol. 37, No. 2, Unfinished Revolutions A special issue edited by Phillip Rothwell, pp. 469-492. Solanki, Gopika (2011) Adjudication in religious family laws: cultural accommodation, legal pluralism, and gender equality in India, Cambridge: Cambridge University Press. Vatuk, Sylvia (2013) „The "Women‟s Court" in India: an Alternative Dispute Resolution Body for Women in Distress‟, in Holden, Livia ed. Legal Pluralism and Governance in South Asia and in the Diasporas, special issue for the Journal of Legal Pluralism. For the reception and recognition of Indian customary practices in the UK and in the US see NP v KRP [2013] EWHC 694 (Fam) and Holden, Livia (2008) "Crossing the borders: from the Hindu panchayat to the immigration office", in Hindu Divorce, pp. COIS: Thank you. This is very helpful. The ongoing debate about age, seniority, and social diversity as criteria that should inform the selection of judge at the apex court but are not provided by the Constitution should be added accessed 9 December 13). Additional source: in relation to the appointment of judges, corruption, and the scarce independence of the judiciary see accessed 9 December 13) COIS: Thank you. This is an interesting interview. Additional sources: First paperless courts in 2010 in Indi accessed 11 December 13 Increase of sexual violence also linked to excessive backlog of criminal courts accessed 11 December 13. This section would benefit from a link or cross-reference with the sections of Naxalites and Jammu & Kashmir and unlawful detention as well. Additional sources: Fair trials on people involved with Naxalites accessed 9 December 13. Unlawful detention and fair trial in Jammu & Kashmir accessed 9 December 13. accessed 9 December 13. p. 69 12.31 Cognizable and non cognizable offences. This section might be linked with bribery which is non cognizable and for which the police cannot arrest without warrant accessed 11 December 13. p. 70 13.03 This section on the Armed Forces Special Powers Act should also be linked with the human rights violations by security forces in Northeast India. See accessed 11 December 13. Mention to the so-called Sedition Law under section 124A of the Indian Penal Code, which carries a maximum penalty of life imprisonment (mitigated by a Supreme Court ruling that sedition requires evidence of incitement to violence) might be added (see the comments of this reviewer to sec. 17 of India COI 2012). p.72 13.08 Descriptive quotations like this one would be more effective if extracted from the original sources, in this case The Gazette of India accessible at accessed on 9 December 13. p. 72 13.09 More attention should be given to the abuse of preventive detention mentioned here and this should be linked with preventive detention treated elsewhere in this report (see 9.29 and 13.01). p. 72 13.10 The South Asian Terrorism Portal would be more significant as a source if used for information exclusively related to terrorism. p. 73 13.15 Here more specific sources are suggested which were available at the time of the preparation of India: CoI 2012: Authoritative human rights sources and reputed national press have reported the repeated request for repeal of the Jammu and Kashmir Armed Forces Special Powers Act as well as the abuses perpetrated under accessed 9 December 13. p. 74 13.17 Here more specific sources are suggested which were available at the time of the preparation of India: CoI 2012: Under the cover of the Public Safety Act India appears to run against international human rights' obligations: accessed 9 December 13. p. 74 13.18 This paragraph cites the cases in which anti-terrorism laws have promptly charged the culprits of terrorist acts. Occurrences of delay such as the one of the Gujarat riots should also be cited: accessed 11 December 13. This reviewer can attest to the non-justified interference from the Ministry of Interior in relation to the organization of international conferences in India. COIS: Thank you for the above information. 17 Freedom of speech and media The Reporters without Borders referring to the year 2013 indicates that the situation is deteriorating in certain areas of India.
accessed 14 December 13. It should be noted that the Sedition Law (briefly mentioned by sec. 17.06) appears to be used by the Indian government to crack down journalists and activists. accessed 14 December 13. Mention to the Sedition Law could be also added to the section that deals with Security Legislation 13.03 at p.70. This information reporting of attacks to activists by the police should be linked with the corruption and connivance of the police with gangs, political parties based on religious affiliation, and organized crime (see among others sec. 9, 20.4, 20.14, 20.27, 20.45, 20.46, 20. 48). p. 88 19.08 It should be noted that in spite of the disclosure of significant scandals related to financial malpractice and bribery (see also Commonwealth Games 2010) the anti- corruption bill was further amended undermining its force and the upper house was adjourned. See accessed 9 December 13. This should be linked with bribery as non-cognizable offence (12.31). The reference to the "concern amongst women‟s rights activists regarding several discriminatory aspects, especially on the basis of gender, within personal laws governing each religious community" should be put in perspective in order to understand that: - personal laws and customary laws in South Asia may overlap but are essentially two different sources of law - customary matrimonial remedies such as divorce at the woman‟s initiative recognized by sec. 29 (2) of Hindu Marriage Act 1955, provide women with an extra remedy in specific circumstances and unless they are manipulated by patriarchal interpretations. See for ex. Holden 2008, 218: In summary, this book has not only demonstrated that, in the part of Madhya Pradesh where my fieldwork was undertaken, in specific circumstances Hindu women can successfully negotiate the end of an unsuitable matrimonial tie and remarry to secure better lives for themselves and their children; but that for an understanding of the peculiar techniques, which are part of the women‟s legal awareness, it is necessary to see beyond positive law, to where the non-state-law can inform or even substitute for state-law a perspective of legal pluralism that is something more than plurality of laws. Hindu women, of various communities and backgrounds, successfully claim agencies to end unsuitable matrimonial ties and remarry on the basis of custom. They do so by mobilizing tradition on their own terms, a right that no law court or policy maker should in any measure be able to challenge. COIS: Accepted. Thank you for this clarification. Additional sources: For the warning on the potential danger of personal laws as prejudicial to women‟s rights in India see Archana Parashar (2013) "Religious personal laws as non-state laws: implications for gender justice", The Journal of Legal Pluralism and Unofficial Law, 45:1, 5-23. For a socio-legal study that highlights the interpretations of South Asian personal laws that favour women‟s rights see Agnes, F. (1999), Law and Gender Inequality (Delhi: Oxford University Press). For a recent overview of the debate overcoming the assumption that personal laws are per se against gender rights see the following extract accessed 14 December 13): Legislative reforms in Hindu and Christian laws and the increasing juridification of the Muslim law have created a greater degree of uniformity among different personal laws. Secondly, there is more debate and dissent within communities and a concerted attempt to reform family law from within. Thirdly, new evidence suggests that gender inequality within the family bears a greater correlation to socio-economic conditions than the form of religious law. But perhaps, most importantly, the new areas of emphasis on family law reform address questions such as domestic violence which cut across community identities and concerns. p.90 Detailed reference to Hindutva, extremist Hindu parties such as Abhinav Bharat and Rashtriya Swayamsevak Sangh and violence linked to them should be added (see December 13). See also forms of daily harassment by Hindu radical vigilantes at accessed 11 December 13. A cross- reference might be added with sec. 8.14. COIS: Accepted. We will ensure our information on extremist Hindu parties contains more detail in future Pakistan COI reports. The sources provided will be useful to expand this section. This section on religiously motivated violence and communalism should be linked to the other sections of this report that treat the mentioned facts. The reasoning of the USRF 2010 Report suggesting that factors behind communal violence are not always based on religious affiliation should be complemented with the recurrent attacks and abuse to religious minorities and people belonging to groups that are considered to be polluted according to Hindu orthodoxy (see for ex. The connivance of a politician with the police in a case of lad grabbing of an accessed on 11 December 13). The current government appears to support the adoption of the Communal Violence accessed 11 December 13. COIS: Thank you for the above sources. This section on Jammu and Kashmir should be integrated with the human right abuses linked with heavy military presence (see the comments of this reviewer at sec. 9.44. regarding the estimate of 500.000 military contingent for 500 insurgents) and special laws. Much of this information was already available in 2012 (see accessed 11 December The section on Gujarat riots needs update. The information on the Rashtriya Swayamsevak Sangh (right wing paramilitary nationalist Hindu group) involvement, which was already available at the time of publication of India COI 2012, appears The statement "Although no Muslim caste system exists …" should be reformulated as "In spite of the egalitarian principles of Islam groups and subgroups of Indian "The USRF 2009 Report observed, ―Although most victims were Christians, the underlying causes that led to the violence have complex ethnic, economic, religious, and political roots related to land ownership and government-reserved employment and educational benefits." Linkages to other parts of this report especially for the argument undermining religious affiliation as a source of discrimination. See the comment of this reviewer for sec. 20.10. Sources other than the South Asia Terrorism Portal should be included. See for ex. entry Babbar Khalsa in the Encyclopedia of Terrorism (Peter Chalk), 2013, ABC- COIS: This additional source may be useful. We also use Jane‟s. This section should be updated with the information on the waves of rapes and other discrimination against women see accessed 11 December 13. This section on tribal peoples (Adivasi) is particularly poor and needs significant integration regarding displacement and abuse of human rights, environmental rights, and land rights in particular. See among the many sources available: essed 11 December COIS: We agree that the section on Adivasi could have been more detailed. Although this is an important human rights issue, our COI Reports focus primarily on issues raised by asylum applicants in the UK. In the past few years COIS has not received any enquiries from Home Office asylum decision makers pertaining to Adivasi. In the event of such an enquiry, COIS would provide supplementary information which is specific to the case. The Jarawa tribes on the Andaman Islands deserve to be mentioned perhaps under a subheading: international access has been strictly controlled by the Indian government but situations of human rights abuse and exploitation have been regularly and increasingly reported: In spite of the large quantity of information available on transgender communities in India the non-state system of dispute resolution and customary (land) rights that apply have been studied exhaustively. See however the documentary film Between the Lines by Thomas Wartman (2005) that shows how hijras‟ community leaders play an encompassing role of protection and management of funds that sometimes but not always is also abused. COIS: Thank you, this has been noted. This statement should be integrated with the acknowledgement that personal laws and customary practices do include provisions that are contextually and culturally conducive for the protection of women‟s rights at a national and international level for what concerns in particular the diasporic communities (see Holden, Livia (2008) Hindu Divorce: A Legal Anthropology, Aldershot: Ashgate; Holden, Livia (2012) „Divorce at the Woman‟s Initiative in South Asia and in the Diasporas‟ in Interpreting Divorce Laws in Islam, Rubya Mehdi, Werner Menski, Jørgen Choler Nielsen (eds.), DJØF: Copenhagen; and Holden, Livia (2011) „Expert Report Writing: Professional Commitments and Legal Outcomes‟, in Cultural Expertise and Litigation: Patterns, Conflicts, Narratives, Holden, Livia ed., London: Routledge.) This section might cross-referenced with sec. 20.04. This section needs update regarding the new anti-rape legislation. See for ex. (accessed 11 December 13) which has been already considered as insufficient (see accessed 11 December 13). Section n.25 on children does not mention the abuse of children‟s rights due to corporate-led development. See accessed 11 December 13. COIS: Thank you. This report will be useful. accessed 11 December 13. Section 28 on food security should be updated. accessed 11 December 13. This section on Unique Identification should be integrated with the information accessed 11 December 13. This section on Internally Displaced People should be integrated and updated with the on 10 December 13. COIS: Partly accepted. COIS included a link to the principal Internal Displacement Monitoring Centre report, for readers who may require more detailed information on IDPs in India. p. 162 accessed 11 December 13. This section on land acquisition needs significant integration and update: - on agricultural reforms and their failure (see Deshpande, R S, 2012, Agrarian Crisis and Farmer Suicides (Land Reforms in India Series), Sage Publication, - the highly debated issue of farmers‟ suicide (for conflicting analysis see , accessed 14 December 13), - land rights and indigenous people especially for what concerns the state‟s connivance with corporations and multinationals that disregard the existing legislation (see accessed 11 December 13. - land grabbing (see accessed 11 December 13). - Take-over by the state of common and forest land as well as project/ development driven acquisition of private and common land by the state causing direct loss of livelihood without compensation or rehabilitation even beyond the affected area (see Gopalakrishnan, Shankar (2012) Undemocratic and arbitrary: Control, Regulation, and Expropriation of India's forests and common land, Society for Promotion of Wastelands Development Rights and accessed 14 December 13 ) This section should also be integrated with the severe backlog of civil cases that makes redress ineffective (s accessed 14 December 13) and the poor access to redress against illegal or unfair accessed 14 December 13). COIS: Partly accepted. Land acquisition by the state is an important human rights issue, but it would not be appropriate to devote a large amount of space in the COI Report to it, as it is not an issue cited by asylum applicants in the UK. Furthermore this section should link with the section on Maoist as background information and include data on the extremely harsh relocation for farmers, especially if they belong to tribal groups (s accessed 14 December 13): So in Bastar the state has this predicament. They want the minerals, they even want the forests a little bit for carbon credits, but they don‟t want the people. In 2005, Salwa Judum starts. It‟s typical strategic hamleting, moving people out of the villages and into camps. A similar approach was taken to insurgencies in the Northeast, in Mizoram and Tripura, for example. Here, they emptied 644 villages, by the government‟s admission, 350,000 people. About 50,000 were brought to the camps, and today these camps still have about 10,000 people. Some fled to neighbouring states particularly Andhra Pradesh. Where are the rest? They seem to have gone even deeper into the forest, probably 200,000 people. They try to cultivate and live in the forest, but they are being treated as outlaws. This displacement has been a very violent process. There are affidavits, evidence in the "Salwa Judum" cases filed in the Supreme Court (Nandini Sundar‟s case and Kartam Joga‟s case). In one block alone, the Konta block, there were 500 deaths, 99 rapes, 2000 houses burned. This was a violent, state-backed vigilante movement, and was also essentially pushed back militarily by the Maoists. COIS: Thank you for the suggestions and updates above. We will consider these for inclusion in future COI reports on India.

Source: http://icinspector.independent.gov.uk/wp-content/uploads/2014/11/Home-Offices-response-to-the-IAGCIs-review-on-the-COI-report-on-India.pdf


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