International Law Memorandum: Jharkhand’s Obligation to Prevent Witch-Hunting I. Introduction I IL. Applicability of International Law in Indian Courts 2 IIL Factual Background. 4 4 s 6 A. Witch Hunting in In 1. The practice of witch-huniing_ 2. The reasons for naming women witches, B, Legal Prohibitions on Witch-Hunting in India [National laws _ 2. State laws: . Indian Courts’ Treatment of Witeh Hunting f IV. Legal Issue. R V. Discussion ne 7 A. India’s failure to adequately address the practice of witch-hunting violates several core rights guaranteed by treaties and conventions. 3 |. India has an obligation to ensure equality aad protection from discrimination, and Wt violates the Fight to B Ig equality and obligation to protect against discrimination, _ 2. India has an obligation to protect women’s rights to life, and it fails ofthis obligation. 3. India has an obligation to prohibit torture and cruel, inhuman, or degrading treatment, andi falls a This obligation, 4. India has an obligation to protect the right to security of the person, and it fas in this obligation 5. India has an obligation to protect the right to adequate housing, and it fils inthis obligation, 6. India has an obligation to ensure the right to access competent national tribunals or judicial authorities, an it violates its obligation to protect this right. — 2 7. India has an obligation to adopt legislative measures to protect against witch-hunting, and it violates this obligation __ — 33 VI. Recommendations 39 A, Amending existing law and improving enforeement 39 B. Sensitizing police and government officials, 2 C. Supporting the formation of a support group for women who are branded as witehes_ 42 D. Mandating educational and health programs, 8 E, Collecting Greater Information and Statistics on Witeh-Hunting “4 VIL, Conclusion 45 |. Introduction ‘These comments have been prepared by the Comell Intemational Human Rights Clinic in support of a petition to be submitted to the High Court of Judicature at Jharkhand, in the matterof XX. The petition urges the government to prevent, punish, and prosecute individuals who accuse women of being witches and commit crimes such as murder, torture, and property dispossession against them. ‘These comments are based on key provisions contained in international human rights treaties, the interpretations of those treaties by the Committees in charge of their implementation, relevant jurisprudence produced by treaty monitoring bodies, the opinions of Special Rapporteur on given issues, and the U.N. High Commissioner on Refugees on the obligations of India to prevent the practice of witch-hunting. ‘The purpose of this memo is to lend support to the aforementioned petition by establishing Jharkhand’s obligations to prevent witch-hunting, an obligation that inheres due to international human rights law. I Applicability of International Law in Indian Courts Under Article 51 of the Indian Constitution, India should “endeavor to... foster respect for international law and treaty obligations in the dealings of organized peoples with one another.” This provision provides “a self-evident directive” that India must comply with international law.’ Although the Parliament must pass legislation incorporating a treaty into domestic law,* the Supreme Court has held that “it is the duty of these courts to construe our international law and not in conflict with it”* legislation so as to be in conformity Elsewhere, the Supreme Court has stated, whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate "Iupia Const. at. 51) P, Chandrasekhara Rao, The Indian Constitution and International Law 7 (1993), ® Twin Cons. art 283, * Kesavananda Bharti Sripadagalvaru w. State of Kerala and Anr., ALR, 1973 S.C. 1461‘occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant. le 51 of the Constitution and the Supreme Court’s jurisprudence require it to ensure that India is in compliance with its international legal obligations as well as with its obligations under the Constitution and domestic law. Furthermore, states within India must comply with international law. The Directive Principles of State Policy, which include Article 51, are “fundamental in the governance of the country,” and the Supreme Court has said that states must apply the Principles.’ This means that states too must “foster respect for international law and treaty obligations.”” Thus, international law is not merely binding on the national government; rather, states too must ensure, through legislative and executive acts and court decisions, that they are in compliance with international treaties and covenants. Therefore, the international obligation to prevent witch-hunting extends to the state of Jharkhand as well. Moreover, the Indian constitution itself must be interpreted in light of the international treaties to which India is a party, and in conformity with international law.’ India’s international treaty obligations to prevent witch-hunting are consistent with Indian constitutional guarantees of equality, the right to life, and the right to remedies for infringements of rights. Various provisions of the Indian Constitution mirror provisions in the Convention on Elimination of All * Gramophone Company of India, Ld. Birendra Bahadur Pandy, 1984 SCR (2) 664 & akhit Bharatlya Soshit Karamchari Sangh v. Union of India, 1981 SCR (2) 185, 7 Inia CONST at $1(). * See Gramophone Company of India, Lid. Birendra Bahadur Pandy, 1984 SCR (2) 664 (noting that “t]he comity of nations requires that rules of intemational law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with Acts of Parliament." Moreover in Vshakav. State of Rajasthan, the court found that nterational conventions could be “used for construing the fundamental rights expressly guaranted in the Constitution of India". Vishaka v. State of Rajasthan, AIR 1997 SC 3011. The court justified the use of international Iw in its decision by noting that "[it is now an accepted rule of juicial construction that regard must be had to international conventions and norms for construing domestic law ‘when there is no inconsistency between them and there isa void in the domestic law.” Visuakav. State of Rajasthan, AIR 1997 SC 3011Forms of Discrimination Against Women, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, and the Convention Against Torture, In order for India to be in compliance with its obligations under these conventions and covenants, it must interpret the rights guaranteed in the Constitution such that they conform to the guarantees under international law. Indeed, the Supreme Court has recognized that “the contents of the International Conventions and norms are significant for the purpose of interpretation” of rights already guaranteed in the Indian Constitution.” For the foregoing reasons, this Court should consider and utilize the international law and legal principles set forth herein to provide adequate prevention of witch-hunting and protection for its victims. Il, Factual Background A. Witch Hunting in India Witch-hunting, the practice of naming an individual a witch and then causing her harm, is ‘a prevalent problem in India that often results in the dispossession, brutalization, and murder of Indian women, Indian witchcraft, which is not necessarily accompanied by the violence that often characterizes witch-hui 2, has existed for millennia all over the country and across social ied several common and religious groups." Despite this diversity, modern observers have ider threads in harmful witch-hunting practices across India, The victims of witch-hunts are usually women, and they are usually blamed for any ailment or misfortune that befalls the community or ‘one of its members.'' The practice is most widespread in areas of lower socioeconomic ° Vishaka v. State of Rajasthan, AIR 1997 SCR 3011. °° See generally R.N. SALETORE, INDIAN WITCHCRAFT (1981) "See RLN. SALETORE, INDIAN WETCHCRAFY (1981) at 203; ANANYA BARUYA, BELIEF IN WITCH: WITCH KILLING IN Dooars 18-19, 21-23 (2005); MrrA BARMAN, PERSECUTION OF WOMEN: WibOWS AND WITCHES 8-19 (2002),development.'? The targets of witch-hunts are often widows or other marginalized members of society." 1. The practice of witch-hunting Over the last fifteen years, witch-hunts have taken the lives of approximately 2,500 women in India.'* While reports differ somewhat in their numbers, the practice appears to be on the rise: 670 women were killed from 2004-2005, and 700 women were killed in 2006.'° The killings are often very brutal, as when five villagers were hacked to death, or when a family was stoned and possibly buried alive.'° Beheadings of suspected witches have also been reported.!” When they are not killed, suspected witches have been beaten, raped, tortured, imprisoned, driven from their village, and have had their property confiscated.'* In one case in Bihar, victims were forced to eat human and animal excrement."* In Jharkhand, perpetrators of witchcraft violence tried to pull out a victim’s fingernails.” " SoHAILA KAPUR, WITCHCRAFT IN WESTERN INDIA 7 (1983); "= Indra Mushi, Homen and Forest: A Study of the Warlis of Western India, § Gene, TECH. & DEV, 177 (2001). '* See Agpita Sutradhar, Rural India Targets Women in Wich Hunts, ORATO (India) May 27, 2006, !tp:/wwwworato.comiself-help/rural-india-targets-women-witch hunts '° See Atpita Sutradhar, Rural India Targets Women in Witch Hunts, ORATO (India), May 27, 2006, hutp:/\www orato.com/self-helprural-indiatargets-women-witch hunts; Swati Saxena, Recourse Rare for Witch ‘Hunt Vietims in india, WOMEN’S E-News, Sept. 17, 2009, hutp:/www.womensenews.orgarticlefimidyn/sid’3241/contextarchive "© Scott Conroy, Modern-Day Wich Hun in Remote India, CBS NewS, Aug. 2, 2006, available at hugp:fwwnw.cbsnews,convstories/2006/08/22/vorld/main1918803 shtml; Subi Bhaumik, ‘Witch’ Family Killed in India, BBC NEWS, June 12,2008, available at http/news.bbe.co.uk/2/hi/South_asia7449825.stm, ” India: Country Reports on Human Rights Practices, US. DEPARTMENT OF STATE BUREAU OF DEMOCRACY, Hunan RicHts, AND Lasos (Mar. 11, 2008), htp:/www.state.gov'g/drl/s/herpt 2007/1006 14.htm, "See Pronoti Baglary, Witch Hunting tn India, THE VIEWSPAPER (India), July 3, 2008, ‘nup:/theviewspaper.net witch hunting-in-india; Swati Saxena, Recourse Rare for Witch Hunt Vietims in India, WoMEN’s E-NEWS, Sept. 17, 2009, http:/Avww.Womensenews.org/articl.cfin dyn/aid/324 1/contexvarchive; Rama Lakshmi, Women Accused of Witchcraft Face Violence in Rural India, THE WASHINGTON Post, Aug. 8, 2005; Puja Roy, Sanctioned violence: development and the persecution of women as witches in South Bihar, DEVELOPMENT IN Practice, Vol. 1, No.2 (May 1998), "* Puja Roy, Sanctioned violence: development and the persecution of women as witches in South Bihar, DEVELOPMENT IN PRACTICE, Vol. 1, No.2 (May 1998). ® Rama Lakshmi, Women Accused of Witcheraft Face Violence in Rural India, THE WASHINGTON POST, Aug. 8 2005;2, The reasons for naming women witches Several causes motivate witch-hunting, Sometimes, the victim is thought to have caused illness, death, or a bad harvest.” In other cases, she is being punished for refusing sexual advances or challenging the authority of the community elders.” In many cases, a woman is accused of witchcraft in order to dispossess her of land she owns: once the woman has been killed or di ven from her village, her attackers are free to confiscate her property.”> Since most of the fatalities of these witch-hunts are widows, this scenario seems especially likely.* Mita Barman notes that because the incidence of witch hunting is rising in some communities, even those that had no history of witchcraft, witch hunting is likely used as an excuse for violence and dispossession of property.”> Today, witch hunting takes place primarily among the Adivasi, ori \digenous tribal people, especially in Santhal, Oraon, Munda, Ho, and Kharia communities.” Among these ither extremely limited or nonexistent.” Only the communities, women’s property rights are Santhal give women, even widows, property rights; the Munda and Kharia merely allow women Swati Saxena, Recourse Rare for Witch Hunt Victims in India, WOMEN’S E-NEwS, Sept, 17, 2009, ‘ntp:/wwww.womensenevs.org/articlecfin/dyn/aid/324 /contextarchive, * fd; Subir Bhaumik, ‘Witch’ Family Killed in India, BBC NEWS, June 12, 2008, available at hhup:/inews.bbe.co.uk/2hiSouth_asia’7449825 stm. ® Swati Saxena, Recourse Rare for Witch Hunt Victims in India, WOMEN’S E-NEWS, Sept. 17, 2009, baupviwww.womensenews.org/artcle.cfin/dyn/ai/3241/contextarchive * Subir Bhaumik, ‘Witch’ Family Killed in India, BBCNEWS, June 12, 2008, available at latp:/news bbe.co.uk/2/hlsouth_asia’7449825 stm. Mita BARMAN, PERSECUTION oF WoMeN: WIDOWS aND WITCHES 8-19 (2002), ® Subir Bhaumik, ‘Witch’ Family Killed in India, BBC News, June 12, 2008, available at hutp:/news. bbe.co.uk/2/hilsouth_asi7449825.stm; Gladson Dungdung, The Witehhwnting in Santa, Ho, Mund, Oraon, and Kharia Adivasi Dominated Areas, JHARKHAND ONLINE, Feb. 3, 2009, htip:/harkhandonline. wordpress.com/2009/02/03/the-witch-hunting-insaathal-ho-munda-oraon-and-kharia- adivasi-dominated-areas ” Gladson Dungdung, The Witchhunsing in Santhal, Ho, Munda, Oraon, and Kharia Adivasi Dominated Areas, JHARKHAND ONLINE, Feb, 3, 2009, htp:/harkhandonline.wordpress.com/2009/02/03/the-witch-hunting-in-santhal- ho-munda-oraon-and-kharia-adivasi-dominated-areas.to maintain property owned by a man.”* Witch hunting is most widespread in the northeastern part of the country, in the states of Jharkhand, Assam, West Bengal, and Bihar.” However, it is a large problem elsewhere in India as well.”” Unsurprisingly, witch-hunts take place for the most part in rural areas with little access to medical care, sanitation, and education, as it is in these areas that traditional tribal belief$ are most widespread and “superstition gains a force o' own.”"! The ojha, a spirit healer or witch doctor, in a community may sometimes accept bribes to name a woman as a witeh.”? B. Legal Prohibitions on Witch-Hunting in India In India, there is a combination of national and state-level laws that, theoretically, should cover the acts and behaviors of the perpetrators. However, their effectiveness has been blunted by poor enforcement, insufficient penalties, and court rulings.” 1. National laws > Gladson Dungdung, The Witehhunting in Santhal, Ho, Munda, Oraon, and Kharia Adivasi Dominated Areas, JHARKHAND ONLINE, Feb 3, 2009, http:/jharkhandonline.wordpress.com/2009/0210\the-witeh-hunting-in-santha- ino-munda-oraon-and-kharia-adivasi-dominated-areas. Swati Saxena, Recourse Rare for Witch Hunt Victims in India, WOMEN'S E-NEWS, Sept. 17,2009, htp:/www.womensenews.org/articleefin/dyn/aid'3241/contextarchive; see, e.g, Rama Lakshmi, Women Accused of Witchcraft Face Violence in Rural India, THE WAstiNGTON Post, Aug, 8, 2005; Subir Bhaumik, ‘Witch’ Family Killed in India, BBCNEWS, June 12, 2008, available at htp:/news.bbe.c0.uk2/h/south_asia’7449825.stm; Meena Kandasamy, Dangerous Dalit Women and Witch-Hunters, ULTRA VIOLET, Apr. 14, 2008, htp:/ultraviolet n/2008/04’14dangerous-dalit-women-and-witeh-hunters, ™ See, eg. Woman Labeled as Witched, Forced to Eat Burning Coal, WORLD Wib€ RELIGIOUS NEWS, Aug. 16, 2007, hip: /www.swwrn.orgartcle php?idd-25946&see-398con18 (reporting that a woman in Rajasthan was attacked and persecuted for being a witch); Meena Kandasamy, Dangerous Dalit Women and Witeh-Hunters, UttRa Viow, Apr. H, 2008, htt/ultravioltin/2008/04/14/dangerous-dalitwomen-and-witch-hunters (reporting that from 19912000, several hundred women in Andhra Pradesh were killed for practicing “black magic”) > Swati Saxena, Recourse Rare for Witeh Hunt Vitims in india, WOMEN'S E-NEWS, Sept. 17, 200, Inp:/www.womensenews.orwarticle.cfm/dyn/aid/3241 fcontext/archive. ° Swati Saxena, Recourse Rare for Witch Hunt Vctins in India, WOMEN'S E-NEWS, Sept. 17, 2009, Inp:/www.womensenews.orgarticl.fin/dynaid/324 Vcontext/archive Swati Saxena, Recourse Rare for Witeh Hunt Victims in India, WOM Inpiwww.svomensenewsoraaticleefin/dynaid/3241/contextarchive. 'SE-NEWS, Sept. 17, 2009,(On the national level the Indian Penal Code provides a punishment of up to one year in prison and/or a fine of up to 1,000 rupees for “voluntarily causing hurt.” This penalty is the is for beating and torturing an accused witch.”* Most same for slapping another person as i often, § 323 is used to prosecute the perpetrators of witch-hunts.”* Elsewhere, the Indian Penal Code criminalizes murder and provides a penalty of death or life imprisonment, as well as a n for “whoever assaults or uses fine.’” Section 354 imposes a penalty of up to two years in pt criminal force to any Woman, intending to outrage or knowing it to be likely that he will thereby ‘outrage her modesty." In the case of the perpetrator accusing a woman of witchcraft so that he may obtain her property, Section 382 provides a ten year prison sentence for “whoever commits theft, having made preparation for causing death, or hurt, or restrain ... in order to the ‘committing of theft . . . or in order to the retaining of property taken by such theft.” Other Penal Code provisions that are relevant to crimes committed against supposed witches relate to wrongful restraint and confinement,“ causing “grievous hurt,” kidnapping and abduction,” rape,** and defamation." Ananya Baruya recorded the provisions of the Indian Penal Code that were used to bring charges against the perpetrators of witch hunters in the Dooars region of West Bengal.’ When the witch-hunts resulted in the death of the victim, the perpetrators were often charged under * Typ PEN. Cone, § 323. » swati Saxena, Recourse Rare for Witch Hunt Victims in India, WOMEN'S E-News, Sept. 17, 2009, hups/iwwww.womensenews.org/articl.cfinidyn/aid/324I/eontextarchive, Swati Saxena, Recourse Rare for Witch Hunt Victims in India, WOMEN'S E-NEWS, Sept. 17, 2009, hnjps/iwow.womensenews.org/articlecfin/dyn/aid/3241/eontexvarchive, TNpIA PEN. CDE, §§ 300 & 302. © Jypia PEN. Cove § 354. INDIA PEN. Cope § 382, © Jypia PEN. CODE §§ 339-48 INDIA PEN. CODE §§ 320 & © Iypia PEN. Cone §§ 359-69 ® Inpia PEN. Cove §§ 375-6, “ Iypia PEN. Cope §§ 499-501. © ANANYA BARUYA, BELIEF IN WiTcit: WITCH KILLING IN DOORS 66-73 (2005),Section 302 of the Penal Code pertaining to murder.“* It was also quite common to bring charges under Penal Code provisions on concealing or destroying evidence, kidnapping or abducting in order to murder, and acts done by several persons in furtherance of a common intention.” Charges were also brought under Sections 324, 325, and 326 of the Penal Code, which relate to voluntarily causing hurt and grievous hurt, and under Section 448 on house-trespass."* 2, State laws Jharkhand has passed a law, the Prevention of Witch (Daain) Practices Act, aimed at h hunting.” The law criminalizes “intentionally or inadvertently curtailing and punishing abet[ing}, conspir[ing}, aiding] and instigat{ing] the identification of a woman as a witch leading to her mental and physical torture and humiliation.”* A person who identifies a woman as a witch can be imprisoned for three months and/or fined 1,000 rupees, and a person who causes a woman physical or mental torture by naming her as a witch can be imprisoned for six months and/or fined 2,000 rupees.*' The Act also prohibits causing any harm to a woman in an attempt to “cure” her; the penalty for such an act is one year in prison and/or a fine of 2,000 rupees. ANANYA BARUYA, BELIEF IN WITCH: WITCH KILLING IN DOOARS 66-73 (2008), #7 ANANYA BARUYA, BELIEF IN WITCH: WITCH KILLING IN DOOARS 66-73 (2005); see also INDIA PEN. CODE §§ 34, 201, & 364, Awawya BARUYA, BELIEF IN WITCH: WITCH KILLING IN DOORS (2005),; see also INDIA PEN. CODE §§ 324-26 & 448. © Seo The Prevention of Witch (Daain) Practices Act, Bihar Act No, 9 of 1999 (Oct. 27, 1999); see also Meena Kandasamy, Dangerous Dalit Women and Witch- Hunters, ULIRA VIOLET, Apr. 14, 2008, ‘btp/ultravioletin/2008/04/14/dangerous-dalt-women-and-witch-hunters. Chattisgarh, and Rajasthan have passed similar laws. See Meena Kandasamy, Dangerous Dalit Women and Witeh-Hunters, ULTRA VIOLET, Apr. 14,2008, ‘hp/ultraviolet.in/2008/0414/dangerous-dalit-women-and-witch-hunters. © Seo The Prevention of Witch (Daain) Practices Act, Bihar Act No. 9 of 1999 (Oct. 27, 1999); see also Meena Kandasamy, Dangerous Dalit Women and Witch-Hunters, ULTRA VIOLET, Apr. 14, 2008, /hup:/ultravioletin/2008/04/14/dangerous-dalit-women-and-witch-hunters. 5" See The Prevention of Witch (Dain) Practices Act, Bihar Act No. 9 of 1999 (Oct. 27, 1999); National ‘Commission for Women, A SITUATIONAL ANALYSIS OF WOMEN AND GIRLS IN JHARKHAND 89, available at Ihup:/inew.nic.in/pdfreports/Gender®20Profile-Iharkhand. pa ® National Commission for Women, A SITUATIONAL. ANALYSIS OF WOMEN AND GIRLS IN JHARKHAND 89, available «ar http /ncw.nic.inpafreports!Gender°420Profile-Jharkhand. pa‘The law applies to the ojha as well to other individuals. The punishments provided in the Act are far less than the punishments imposed under the Indian Penal Code for crimes such as assault and causing grievous hurt. C. Indian Courts’ Treatment of Witch Hunting ‘The jurisprudence in Indian courts on witch hunting is relatively limited and has resulted in mixed outcomes. Several cases have indicated the courts’ willingness to punish those who injure and Kill suspected witches, but in others, courts have reduced or eliminated the punishment for those accused of causing harm through witeh hunting. In Ashok Laxman Sohoni and Another v. State of Maharashtra, the Supreme Court rejected the defendant’s argument that his murder conviction should be overturned based on his belief that the victim was a witch and was practicing sorcery."* In Budhu Munda & Others v. State of Bihar the Jharkhand High Court dismissed an appeal by defendants who were convicted of assaulting a suspected witch and her family.** Likewise, in Konde Munda and Others v, State of Bihar, the Court also upheld a conviction, calling the defendants’ appeal “devoid of merit” because the prosecution was able to prove beyond a reasonable doubt that the defendants had killed a husband and assaulted his wife because they were believed to be witches.** In addition, the Jharkhand High Court has also upheld convictions under the Prevention of Witch (Daain) Practices Act.*” See Gladson Dungdung, The Witchhunting in Santhal, Ho, Munda, Oraon, and Kharia Adivasi Dominated Areas, JHARKHAND ONLINE, Feb. 3, 2009, hitp/harkhandonline. wordpress.com 2009/02/05\the-witeh-hunting-in-santhal hho-munda-oraon-and-kharia-adivasi-clominated-areas 31977) 64 ALR. 1319, © Buhu Munda & Ors.» State of Bihar, Iharkhand H.C. (Nov. 4, 2003), & onde Munda & Others v. State of Bihar, Sharkhand H.C, (Mar, 23, 2003). © See Fekan Singh & Others v. State of Jharkhand, Sharkhand H.C. (June 26, 2008).However, the Jharkhand High Court has also overturned convictions for witch hunting on several occasions. In Tula Devi and Others v. State of Jharkhand, although the High Court upheld the conviction of eight defendants who assaulted a suspected witch and her husband in their house, it quashed the conviction under the Prevention of Witch (Daain) Practices Act.®* The court stated that under the Act, the victim of the witch-hunt held the burden to prove that the defendants accused her of being a witch.” Although the victim alleged that for two years the defendants had called her a Daain and had said they would not allow a Daain to live there, the defense asserted that the animosity was a result of an ongoing property dispute between the vietim’s husband and the defendants.” ‘The court found that she had failed to prove that the defendants had accused her of being a witch." ‘The Jharkhand High Court has likewise quashed convictions based on a lack of eyewitnesses. For instance, in Madhu Munda and Others v, State of Bihar, the court stated that even though there were four witnesses to the defendants dragging the vietim from her home and accusing her of being a witch, the witness testimony was insufficient.” The court reasoned that the delay in reporting the incident, coupled with the fact that the witnesses all knew one another, rendered their testimony unreliable, and so it overturned the conviction under § 364 of the Indian Penal Code on kidnapping in order to murder. In addition, the Jharkhand High Court has overturned convictions of perpetrators of witeh-hunts on procedural grounds. © Tula Devi & Others v. State of Jharkhand & Another, Iarkhand H.C. (Apr. 18, 2006) © Tula Devi & Others v. State of Jharkhand & Another, harkhand H.C. (Apr. 18, 2006). © Tula Devi & Others». State of Jharkhand & Another, arkhand H.C. (Ape. 18, 2006) Tula Devi & Others». State of Jharkhand & Another, Shatkhand H.C. (Apr. 18, 2006) © Madhu Munda & Others v, State of Bihar, narkhand H.C. (Apr. 24, 3003), © Madhu Munda & Others v. State of Bihar, arkhand H.C. (Apr. 24, 2003). See also Tufani Byuiyan and Others ». State of Jharkhand, Iharkhand H.C. (Jan. 3, 2006) (holding that vetim’s eause of death was not appropriately established, despite the presence of eyewitnesses tothe fatal attack); Parmeshal Kol and Others w State of Bihar, Jharkhand H.C. (Apr. 2, 2003) (overtiring a conviction based on prosecution's failure to examine witnesses who ‘were not closely related to the victim, despite the testimony of two doctors); Doman Munda and Avr. v. State of Bihar, haskhand H.C. (uly 21, 2004) (Finding that the accused should be acquitted because although there was an uIna case in the High Court of Patna, the court was direct about its decision to mitigate the sentence for a murder conviction based on the defendants” belief that the victim was a witch." fier the death of their brother by a snakebite, which they believed had been caused by the victim’s witcheraft, the defendants went to the vietim’s house at night and attacked her with sticks and blades." The court found that the defendants’ “superstitious belief that he was morally justified in committing the murder of Sakina Khatoon who, he thought, had caused the death of his brother” were mitigating factors.©’ The court reduced the sentence of one defendant from death to life imprisonment, mitigated the crime of the other defendant from murder to intentionally causing grievous hurt, and reduced the second defendant’s prison term from life to seven years.“* IV. Legal Issue ‘The legal issue presented is whether the state government of Jharkhand’s failure to address the practice of witch-hunting violates key provisions of international law, as they are enshrined in several human rights treaties. V. Discussion India’s failure to adequately address the practice of witch-hunting violates several core the right to non-diseri ination, the right rights provided by treaties and conventions, includ eye-witness tothe event, the witness attributed the cause of death toa stick, whereas the medical evidence suggested that in addition to a blunt object, the killer used a sharp object as well) Birsa Ahir v. State of Bihar dharkand H.C. (uly 21, 2008 (finding tat the testimony of the sole eyenitness Was unreliable because he was an interested pasty and because the alleged scene ofthe crime di not contain blood), Jetha Munda v. State of Jharkhand, Srarkhand H.C. (Aug. 5, 2004 (eversing a conviction on the grounds that the lower cour erroneously relied ona child witness and an exra-judicial confession); Rasmu Morandi y. Stave of Bihar, Sharkhand H.C. (May 10, 2007) See, eg, Samsul and Others ¥ State of Jharkhand, Patna H.C. (Jun 16, 2008). © Samtul Dhobi and Another v. State of Bihar, Patna H.C. (Mar. 30,1993) Samtul Dhobi and Another ». Stat of Bihar, Patna L.C. (Ma. 30, 1993) © Samtul Dhobi and Another v. State of Bihar, Patna H.C. (Mar. 30,1993) © Samu! Dhobi and Another ¥. State of Bihar, Ihagkhand H.C. (Mat. 30, 1993).to life, the right to be free from cruel and inhuman treatment, the right to security, the right to dispose of wealth and be provided with adequate living conditions, the right to access national tribunals, and the obligation to adopt legislative measures. A. India's failure to adequately address the practice of witch-hunting violates several core rights guaranteed by treaties and conventions. 1. India has an obligation to ensure equality and protection from discrimination, and it violates the right to equality and obligation to protect against discrimination. a, India has an obligation to protect women from Gender Based Violence, a form of discrimination on the basis of gender. The Indian government has an obligation to protect women from discrimination on the basis of gender. The Universal Declaration of Human Rights (UDHR), long recognized to be customary international law, provides that all are equal before the law and “are entitled to equal protection against any discrimination.” Similarly, as a party to the International Covenant on Civil and Political Rights (ICCPR)”, India must “ensure the equal right of men and women to the enjoyment of all civil and political rights set forth” in the Covenant itself.”! Moreover, under Article 26, all persons are “equal before the law and entitled without any discrimination to the ion of the law,” which includes discrimination on the basis of sex.”* In addition, as equal prot a signatory to Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)”, India has agreed to eliminate discrimination against women,” which is defined as Universal Declaration of Human Rights, G.A. Res. 217A, at71, U.N. GOAR, 3d Sess, Ist pen. mg, UN, Doe A/810 (Dec. 12, 1948), India acceded to the ICCPR on April 10, 1979. %! United Nations International Covenant on Civil and Political Rights art. 3., Dee. 16, 1966, 999 UN.TS. 171 United Nations International Covenant on Civil and Political Rights, art. 3., Dec. 16, 1966, 999 UN.T'S. 171 ® India ratified CEDAW on July 9, 1993, Though India has made both reservations and dectarations with respect to the Covenant, these reservations and declarations will not affect the ability to enforce the covenant with respect to witch hunting. In particular, it made a declaration with respect to article 5(a), which provides that States shall take appropriate measures to modify the social and cultural patterns of conduct af men and women, This declaration may have a direct effect on the“any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their ‘marital status, on the basis of equality of men and women, of human rights and freedoms in the political, economic, social, cultural, civil or any other field.””* Gender based violence constitutes discrimination on the basis of gender. The Committee on the Elimination of Discrimination Against Women has noted in General Comment No. 19 that the “definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately.””° Further, discrimination under the Convention is not restricted to action by or on behalf of governments, and under article 2(¢) of the Convention, states are called upon to take measures to eliminate private discrimination.” States may be responsible for private acts “if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.””* Thus, India has an international legal obligation to prevent discrimination against women by preventing gender-based violence committed by private actors. India’s obligation includes not only an obligation to enact measures, but also an obligation to take positive steps to protect these rights, The Committee, in its General Comment No. 4, noted that the obligation required not only measures of protection but also affirmative responsibilities of India under the Convention. Given that India has stated that it will only ensure the modification ‘of cultural patterns in conformity with a policy of non-interference, itis not clear the extent to which India has ‘obliged itself to eradicate witch hunting as a belief system. However, because witch hunting often leads to dispossession, torture, and murder, it violates several other articles to which India has not taken reservation and ‘moves beyond the scape of “social and cultural patterns.” Thus, because the basic human rights that are violated that, each beyond the scope ofthe declaration, it has little limiting effect on the application ofthe Convention to India, °* Convention on the Elimination of All Forms of Discrimination Against Women an. 1, Dec. 18, 1979, 1249) UNTS. 13. UN, Committee on the Elimination of All Forms of Discrimination Against Women, General Comment No. 19. Violence Against Women, 6, Al4T/38, 7 UN, Human Rights Committee, General Comment No. 4: Equality Between the Sexes, 41 * UN, Human Rights Committee, General Comment No, 4: Equality Benween the Sexes, 1.action designed to ensure the positive enjoyment of rights."” Consequently, the Committee has imposed specific obligations on the state to fight gender-based violence. The Committee on the Elimination of Discrimination Against Women has recommended that for victims of gender so based violence appropriate “protective and support services should be provided for victims. State parties must encourage compilation of statistics and research on the extent, causes and effects of violence, and on the effectiveness of measures to prevent and deal with violence.*! To the extent that customs, attitudes, and practices exist that support gender based violence, effective measures should be undertaken to overcome these attitudes and practices, including education and public information programs. Finally, in their recommendations the Committee noted the vulnerability of rural women and provided that they should be given access to special services. b. Witeh-hunting leads to gender based violence, a form of discrimination against women, and India has breached its obligation under international law to protect women from gender-based violence. Many of the practices that ensue as a result of witch-hunting constitute gender-based violence and thus discrimination against women. Over the last fifteen years, witch-hunts have taken the lives of approximately 2,500 women in India, and the practice appears to be on the rise." Even where practice does not result in murder, victims of witch-hunts are often subjected to other form of violence, such as beating, rape, torture, and imprisonment, all manifestations of violence. Further, the vietims of witeh-hunts in India are usually women, and they are usually © UN, Human Rights Committee, General Comment No. 4: Equality Between the Sexes, § 1 © UN. Human Rights Committee, General Comment No, 4: Equality Berween the Sexes, § 1 © UN, Human Rights Committee, General Comment No. 4: Equality Between the Sexes, § | © UN. Human Rights Committee, General Comment No, 4: Equality Berween the Sexes, ¥ 240) © See Atpita Sutradhar, Rural India Targets Women in Witch Hunts, ORATO (India), May 27, 2006, huip:/vorw.orato.comvSef-helpirural-indiatargets-women-witch bunts See Pronoti Baglary, Witch Hunting in India, THE ViewsPares (India), July 3, 2008, htp:/theviewspaper.netvitch hunting-in-india; Rama Lakshmi, Women cused of Witeherafi Face Violence in Rural India, THE WASHINGTON Post, Aug. 8, 2005,blamed for any ailment or misfortune that occurs in a given community,** meaning that it constitutes gender-based violence because it is a practice that disproportionately affects women. *° Indeed, as Puja Roy notes, “Witches, a personification of evil, are almost always women; and witch doctors, the symbols of power and good, are always men.”*” Further, the main motive behind witch-hunting is to ensure that women “remain inferior in status to men, and that they have no control over resources or decision-making.”** Given that witch-hunting affects women disproportionately and given the motives behind witch-hunting, India violates its international legal obligations in allowing it to continue. While private actors and not public officials commit the lence that is the product of witch-hunting, India has breached its obligations because states may be held responsible for the discrimination of private actors.” As noted above, India may be held responsible for the act of private actors if it does not act with due diligence in investigating and punishing acts of violence. While India does have national laws”” and regional laws” that would prevent many of the acts that occur as the result of witch-hunting, enforcement is a major problem, According to the Free Legal Aid Committee, less than two percent of those accused of witch hunting are ever convicted.” The power rel: ionship between the perpetrators, often caste-Hindus with political See RIN. SALETORE, INDIAN WITCHCRAFT 203 (1981); MITA BARMAN, PERSECUTION OF WOMEN: WIDOWS AND, Wrrcites 8-19 (2002), * Seo supra note 76 and accompanying text. Puja Roy, Sanctioned Violence: Development and the Persecution of Women as Witches in South Bihar, 8 DEVELOPMENT IN PRACTICE 136, 143 (1998). * Puja Roy, Sanctioned Violence: Development and the Persecution of Women as Witches in South Bikar, 8 DEVELOPMENT IN PRACTICE 136, 145 (1998). See supra note 78 and accompanying text. © See INDIA PEN. CoDE, § 323 (providing 2 fine of $1000 or imprisonment for a year for voluntarily causing hurt}; INDIA PEN. Cone, §§ 300 & 302 (criminalizing murder); INDIA PEN. CoDe, §§ 354 (criminalizing assault of woman). ° See Meena Kandasamy, Dangerous Dalit Women and Witch-Hunters, ULTRA VIOLET, Apr. 14,2008, hip/ultravilet.in/2008/04/14/dangerous-dalit-women-and-witeh-hunters. * See Swati Saxena, Recourse Rare for Witch Hunt Victims in India, WOMEN’S E-NEWS, Sept, 17, 2009, haps tAvw:svomensenews.org/artcle.cfin/dyn/aidi324 Vcontexvarchive; Phulia Tudu and Ana v. The State of Bihar (Now Jharkhand), INSC 924 (Sept. 14, 2007)influence, and the victims, often Dalit or Adivasi women already I ing on the outskirts of society, means that there is little impetus for local officials to investigate and prosecute these crimes.” The problem of failed enforcement is so prevalent that the UN High Commissioner on Refugees (UNHCR) noted that while legislation outlawing witch-hunting in states like Jharkhand has been passed, such legislation has been ineffective in leading to the convietion of the perpetrators of violence.” Consequently, in failing to adequately prosecute the offenses, India can be attributed the discrimination of private actors. India further fails to take positive steps to protect against the practice, and does not (1) S, (2) attempt to overcome cultural attitudes that perpetuate provide services to rehabilitate victi witch-hunting through education, or (3) address the vulnerability of rural women. First, no centralized system to provide for the rehabilitation of vietims of witch-hunts exists. Further, witch-hunts generally take place in rural areas with litle access to medical care, sanitation, and education, as itis in these areas that traditional tribal beliefS are most widespread and “superstition gains a force of its own.”** Noting that the West Bengal region of India is particularly vulnerable to this problem, the Special Rapporteur on Violence Against Women outlined the process by which accused witches are systematically blamed for societal problems and consequently killed or ostracized from the community.** Given the prevalence of a belief system that perpetuates violence against women through witch-hunting, the Indian government ® Soe Meena Kandasamy, Dangerous Dalit Women and Witch-Hunters, ULTRA VIOLET, Apr. M4, 2008, hnp:/ultravioetin/2008/04/14/dangerous-dalit-women-and-witeh-hunters, ™ UNHCR, UN Refugee Agency: Policy Development and Evaluation Service, Jil Schnoebelen, Witcheraft allegations, refugee protection and human rights: A Review ofthe Evidence, a 9-11, available at hp: vw: celiefiveb nt/ewiib.nsfidb900sid/R WST-7RALTE’Sfileunher-jan2009.pdf?openelement, See Swati Saxena, Recourse Rare for Witch Hunt Vietims in India, WOMEN’S E-NEWS, Sept. 17, 2009, hip:/Avw-womensenews.org/articie.cfin/dyn/aidi324 /contextarchive; Phulia Tuc and Ana v. The State of Bihar (Now Jharkhand), INSC 924 (Sept. 14, 2007) ° See Special Rapporteur on Violence Against Women, its Causes and Consequences, Integration ofthe Human Rights of Women and the Gender Perspective: Violence Against Women, 4T,EICN.4/2002'83, available at bttp:/wwww-unhehr.ch/Huridocda/Huridoca.nst'0/42e7191 faeS43562c1256ba7004e963c/SFILE/GO210428 pal.has an obligation to use educational programs to overcome societal prejudices but fails to do so. Finally, though rural women have difficulty reporting incidents of witch-craft violence because of the long distances that they must travel to do so and their relative isolation,”” India has not taken measures to increase rural access to the police, despite its obligation to address the special vulnerability of rural women, The problem of witch-hunting as gender-based violence has attracted the attention of international treaty monitoring bodies. In addition to Committee on the Elimination of Discrimination Against Women’”* and the UNHCR,” the Special Rapporteur on Violence Against Women reported on the problem of witch-hunting in India in 2002, 2. India has an obligation to protect women’s rights to life, and it fails of this obligation a. India has an obligation to protect its citizen’s rights to life. India has an obligation to protect citizens’ rights to life, which is codified in the UDHR, and the ICCPR. Under the UDHR, now widely recognized to be customary international lav, Article 3 provides, “Everyone has the right to life, liberty, and security of person.”'®” Further, under the ICCPR, every human being has a right to life, and no one “shall be arbitrarily deprived of his life."""' Similarly, the U.N. General Assembly’s Resolution on Extra-judicial, Summary, or Arbitrary Executions, adopted in 2009, urges states to, “ensure that the practice of 7 See Swati Saxena, Recourse Rare for Witch Hunt Victims in India, WOMEN'S E-NEWS, Sept. 17, 2009, huip:/ivweswomensenews.org/articie.cfin'dyn/aid/324I/eontext/archive, "UN. Committee on the Elimination of Discrimination Against Women, Concluding comments ofthe Committee 91 the Elimination of Discrimination Against Women: India, §26, UN. Doc. CEDAW/CINDICO/S (Feb. 2, 2007) " See UNHCR, UN Refugee Agency: Policy Development and Evaluation Service, Jil Schnoebelen, Witchcraft allegations, refugee protection and human rights: 4 Review of the Evidence, at 9-11, available at hatps www selieveb invew'ib.nsf'db900sid/RWST-7RALE’Sfile/unhcr-jan2009 pa?openclemen, "©" Universal Declaration of Human Rights, G.A. Res. 217A, at 71, UN. GOAR, 3d Sess, Ist plen, mtg., U.N. Doe A/810 (Dec. 12, 1948), * International Covenant on Civil and Political Rights, art. 6, Dee. 16, 1966, 999 UN.TS, 171extrajudicial, summary, or arbitrary executions is brought to an end and...take effective action to prevent, combat, and eliminate the phenomenon in all its forms and manifestations, The substance of the right requires affirmative measures to ensure its protection. The Human Rights Commission has emphasized that this right should be construed broadly, as it has in the past been “too often narrowly interpreted.”""* In its General Comment No. 6, in noting that the right to life is “the supreme right from which no derogation is permitted even in time of public emergency.” the Committee stated that parties have an affirmative obligation to take ‘measures to prevent and punish deprivation of life by criminal acts, Further, although the text of CEDAW does not deseribe the right to life, General Comment No. 19 to CEDAW notes that gender-based violence that impairs or nullifies the enjoyment by women of human rights and fundamental freedoms is discrimination, and these rights include the right to life. Consequently, these covenants in combination impose an obligation on the State of India to take affirmative measures to prevent gender-based violence, especially when that violence often results in murder. 1b, India violates its obligation to protect the right to life. India violates its obligation to protect women’s right to life, as it is not taking effective ‘measures to protect women against arbitrary and preventable losses of life. As noted above, over the last fifteen years, witch-hunts have taken the lives of approximately 2,500 women in India. Further, the practice appears to be on the rise because while 670 women were killed between 2004 and 2005, 700 women were killed in 2006." "© G,A, Res.63/182, 11, UN. Doe, A/RESI63/182 (Mar. 16,2009), 1 Soe Melissa E. Crow, Smokescreens and State Responsibility: Using Human Rights Strategies to Promote Global Tobacco Control, 29 YSIL. 209, 232 2004), See also General comment 6 to ICCPR "See Appita Sutradhar, Rural India Targets Women in Witch Hunts, ORATO (India), May 27, 2006, -ip/ww.orato.comiself-helptural-indiatarget-women-witeh hunts; Saxena, supra note 18.While witch-hunting does not always result in death, the right to life has been construed broadly. In fact, as noted above, the Human Rights Committee has opted to interpret the right broadly. Asa result, itis likely that even in those instances where witeh-hunting does not result in killings, but instead results in witches being beaten, raped, tortured, imprisoned, and driven from their villages,'”* India infringes on this expansive definition of the right to Under the relevant covenants, India has failed in its obligation to take affirmative measures to combat the practice, as itis obliged to. Despite recommendations issued by the Committee on the Elimination of Discrimination Against Women, which recommended that the state “adopt appropriate measures to eliminate the practice of witch-hunting, prosecute and punish those involved, and provide for the rehabilitation of, and compensation to, victimized women,” India failed to take these measures, Further, although the Committee recommended that the measures taken should be “based on an analysis of its causes, including control over "India has fail land, d to collect any data or undertake any analysis on the issue, and has thus failed of its positive obligations. Indeed the practice of witch-hunting in India has been identified as the arbitrary deprivation of life. Highlighting the rising incidence of witchcraft related killings, the Special Rapporteur on Extra-judicial, Summary, or Arbitrary Killings noted the need for treatment of killings based on accusations of witchcraft as murder, properly investigation and prosecution of such crimes, and effective prophylactic measures to prevent the practice.'* "See Pronoti Baglary, Witch Hunting in India, THE ViewsPareR (India), July 3, 2008, Intp/theviewspaper.netwitch hunting-in-india; Saxena, supra note 4; Rama Lakshmi, Women Accused of Witcherafi Face Violence in Rural India, THe WASHINGTON POST, Aug. 8, 2005 "© UN, Committee on the Elimination of Discrimination Against Women, Concluding comments ofthe Commitee ‘the Elimination of Discrimination Against Women: India § 27, U.N. Doe. CEDAWICIINDICO'3 (Feb. 2, 2007) aie "See Special Rapporteur ofthe Human Rights Couneil on Extrajudicial, Summary, or Arbitrary Executions, Promotion and Protection of All Human Rights, Civil, Political. Economic, Social. and Cultural Rights, Including 203. India has an obligation to prohibit torture and cruel, inhuman, or degrading treatment, and it fails in this obligation. a, India has an obligation to prohibit torture and cruel, inhuman, or degrading treatment, India has a legal obligation to prevent torture and cruel, inhuman, or degrading treatment. 109 ‘The prohibition against torture is considered a jus cogens norm"? that India is bound by. Moreover, India also has a legal obligation to prevent cruel, inhuman, and degrading treatment. While India has signed but not ratified the Convention Against Torture and Other Cruel, 10 Inhuman and Degrading Treatment or Punishment (CAT) nature of CAT under the Vienna Convention on the Law of Treaties obliges India to refrain from acts which would defeat the object and purpose of the treaty.'!' Further, Article 7 of the ICCPR, which India has acceded to, prohibits “cruel, inhuman, or degrading treatment.”''? Under its international obligations, therefore, India is obliged to refrain from torture and cruel, inhuman, and degrading treatment. The obligation to refrain from torture and cruel, inhuman, or degrading treatment not only prohibits the state itself from engaging in such acts, but also obligates the state to prevent private actors from doing so. Under the ICCPR, “it is not sufficient for the implementation of Article 7 to prohibit such treatment or punishment or to make it a crime. State parties should the Right fo Development, § 57, UN. Doe. A/HRC11/2 (May 27 2009), available at hup:/wwww2.ohchrorgenglishibodies/hreouneil/does Isession/A.HRC.11.2,p "See UN, Committe Against Torture, General Comment No. 2: Implementation of article 2 by States Parties, § 1, For the purposes ofthe convention, witeh-hunting would likely be considered torture rather than "® See Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dee. 10, 1984, 1465 UNTS. 85. "See Vienna Convention onthe Law of Treaties, at 18 (a), Jan. 27, 1980, 1155 UN.T.S. 331 (providing that a state is obliged to refrain from acts that defeat the object and purpose ofthe teat when it has signed the treaty or hhas exchanged instruments constituting the treaty subject to ratification, acceptance or approval, uni it shall have 'made its intention clear not to become a party tothe treaty”). While India has not ratified the Vienna Convention on the Law of Treaties, because the Vienna Conventions are considered customary international lv, India i still bound by the treaty "= Tnemnational Covenant on Civil and Political Right, art. 7, Dec, 16, 1966, 999 UN.T'S. 171, The core importance ofthe prohibition against crue! and unusual treatment is articulated in General Comment No. 20 tothe ICCPR, which notes that no derogation is allowed from Article 7 U.N. Human Rights Commitee, General Comment No, 20: Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment, available a http://www unhehr chtbs/doe.nst\Symbol)’692429119707S4969c12563ed004e8aeS?Opendocument. 2inform the Committee of the legislative, administrative, judicial, or other measures they take to prevent and punish acts of torture and cruel, inhuman and degrading treatment under their jurisdiction."'"? Moreover, General Comment No. 2 to CAT provides that “the State’s indifference or inaction provides a form of encouragement and/or de facto permission, ” for torture and notes that the Com tee has previously applied this principle to State parties? failures to prevent and protect victims of gender-based violence.''* Consequently, India is bound to abide by the object and purpose of CAT and is guilty of torture and cruel, inhuman, and degrading treatment when it fails to prevent its commission by non-State actors. s The prohibition against torture and cruel, inhuman and degrading treatment also req the provision of adequate redress under the law. Articles 2-3 of the ICCPR require states to pass laws to give effect to the rights in the Covenant and to ensure that victims of rights violations have effective remedy.''* Furthermore, in cases where the victim is killed, the prohibition against torture in the ICCPR requires India to provide effective remedy to the victim’s family. In Sankara v, Burkina Faso, when the President of Burkina Faso was assassinated, his wife brought suit before the Human Rights Committee. The Committee found that “the refusal to conduct an investigation into the death of Thomas Sankara, the lack of official recognition of his place of burial and the failure to correct the death certificate constitute inhuman treatment of Ms. Sankara and her sons, in breach of Article 7 of the Covenant.”'"® Finally, the prohibition of torture and cruel, inhuman, and degrading treatment also requires special attention be taken to protect groups at risk for being tortured based on status as ‘UN. Human Rights Commitee, General Comment No. 20: Replaces general comment 7 concerning prohibition af torture and cruel treatment or punishment 48, available at hp: nner chtbs/doe ns Symbol)'6924291970784969e12563ed004eBaeS?Opendocument. "UN, Committee Against Torture, General Comment No.2: Implementation of aricle 2 by States Parties, 18 ° Intemational Covenant on Civil and Politial Rights, ar. 2-3, Dee. 16, 1966, 999 UN.TS. 171 "© Sankara v. Burkina Faso, Human Rights Committe, No. 11592008, UN. Doe. CCPRICI86/D/1159°2003marginalized or commonly discriminated against groups.'"”_ In addition to preventing torture against such groups by fully prosecuting and punishing violence and abuse, states are obliged to ‘ensure “implementation of other positive measures of prevention and protection.”'"* Further, General Comment No. 2 on CAT notes that gender is a “key factor” in situations involving torture, and requires that the state identify situations in which women are punished for socially ishment.!"” determined gender roles and prevent such pu b, India violates its obligation to prohibit torture and cruel, inhuman, or degrading treatment. India violates it obligation to prohibit torture and cruel, inhuman, and degrading treatment by allowing the violence created by witch-hunting to continue. Many victims of witch-hunts are the victims of torture and cruel, inhuman, and degrading treatment. For example, they may be beaten, raped, had their heads shaved, be forced to eat human or animal ‘exerement, and be paraded naked through the village.'*” One purported witch recounted being locked in a dark room for four days, where her captors beat her with bamboo sticks and metal rods and tried to pull out her fingernails.'"' ‘These acts may constitute torture and clearly constitute at least cruel, inhuman, or degrading treatment, which India has failed to prevent, Furthermore, India fails to provide the adequate redress that it is obligated to. The failure to investigate and prosecute those that commit witch hunting can similarly be considered inhuman treatment of the families of those women that witch-hunts kill. While India does have some laws, notably in the Indian Penal Code, and while Jharkhand has passed the Prevention of “TUN. Committee Against Torture, General Comment No.2 Implementation of article 2 by States Parties, $2. “SUN: Committee Against Torture, General Comment No, 2: Implementation of article 2 by States Parties, § 21 “UN. Committee Against Torture, General Comment No. 2: Implementation of article? by States Parties, § 2 °° Injemational Covenant on Civil and Political Rights, rt. 2-3, Dee. 16,1966, 999 UNS. 171 "© Se PronotiBaglary, Witch Hunting in India, Tue Viewseare (India), July 3, 2008, bnep/theviewspaperinet'vitch hunting-in-inda; Puja Roy, Sanctioned violence: development andthe persecution of women as witches in South Bihar, DEVELOPMENT IN PRACTICE, Val. 1, No.2 (May 1958). See Rama Lakshmi, Women Accused of Witcheraft Face Violence in Rural India, THE WASHINGTON POST, Aug, 8, 2008 23Witch Practices Act, that prevent cruel, inhuman, or degrading treatment, these provisions are ‘often poorly enforced.'”? In addition, thes ent punishment for © provi jons provide insuffic perpetrators, as the standard punishment under the Indian Penal Code for violations is one year in prison for “voluntarily causing hurt.”'?> Punishment under the Prevention of Witch Practices Act is similarly meager, as those that cause the physical or mental torture of a witch are subject to six months in prison or a fine of 2,000 rupees.'™ Further, the courts often undermine sentences, as (1) many convictions are overturned on appeal,'* and (2) sentences may be mitigated by the fact that the assailant believed that the victim was a witch.'"* As a result, India must reform the legislative and enforcement schemes to provide effective protection of these rights, ally, the failure to pay special heed to a vulnerable group, tribal women, also constitutes a viol n, Tribal women often live in isolated regions, making it difficult to report violence to the police, who are often located at a great distance,'”” and India has made no special accommodations to address this problem. 4. India has an obligation to protect the right to security of the person, and it fails in this obligation. a, India has an obligation (o protect the right to security of the person, India is bound by an obligation to protect the security of the person. Article 9 of the ICCPR provides that “Everyone has the right to liberty and security of the person.”"* According. nly 2 percent of accused witch-hunters are ever convicted, suggesting thatthe enacted statutes are poorly ‘enforced. See Swati Saxena, Recourse Rare for Witch Hunt Vietims in India, WOMEN’S E-NENWS, Sept. 17, 2009, hitp:Awww.womensenews.org/articleefin'dyn/aid/3241/contextarchive; Aepita Sutradhar, Rural India Targets Women in Witch Huns, ORATO (India), May 27, 2006, ttp/worw.orato.com/selF-elpiruralindiatargets-women- itch hunts. ® INDIA PEN. Cope, § 323, "See The Prevention of Witch (Daain) Practices Act, Bihar Act No.9 of 1999 (Oct. 27, 1999); ‘See infra Section 6.6 fora discussion of how convictions are often overtumed on appeal ® See, e.g, Samtul Dhobi and Another v. State of Bihar (Mat. 30, 1993) "= Victims often live in isolated regions where itis difficult to travel to police stations in order to ile reports, ‘meaning that most cases go unreported "= Intemational Covenant on Civil and Political Rights, art. 9, Dee. 16,1966, 999 UN.TS. 171 24to the Human Rights Committee, this right is protected “outside the context of a formal deprivation of liberty." Allowing states “to ignore threats to personal security of non-detained persons subject to its jurisdiction would render totally ineffective the guarantees of the Covenant.” Thus, a state party is not only obligated to refrain from affirmatively endangering the security of an individual, but also obligated to investigate threats against the security of a person,'*' and must take reasonable and appropriate measures to protect them.'*? Moreover, articles 2 and 3 of the ICCPR require states to pass laws giving effect to rights in the Covenant and ensuring that victims have effective remedy." This obligation to provide remedies in the context of security include “initiation and pursuit of criminal proceedings to establish respons and the obligation to ensure that “such violations do not recur in the future.’ ‘Thus, India’s obligations under the ICCPR require it to enact and enforce laws that protect the sect of persons within its jurisdiction and provide remedies to persons whose rights have been violated. b. India violates its obligation to protect the security of the person. ‘The right to security of the person applies to persecution of suspected witches, and India fails to protect against viable threats. Suspected witches may be harassed, forced to leave their villages, and subjected to physical abuse,'** Despite the presence of these threats, India fails to investigate and punish those private actors that present threats to individuals, as only a small ‘See Dias v. Angola, Human Rights Commitee, No, 711/1996, UN. Doe. CCPRIC/68/DI711/1996, "© See Delgado Pae: ¥. Columbia, Human Right Commite, $5.5, UN. Doe. CCPRICIDI195/1985. ° See Luis Asdrubal Jimene= Vaca v. Columbia, Human Rights Committee, U.N.Doc. CCPR/C/74/D/859/1998. See also Jayawardena v. Sri Lanka, Human Rights Commitee, 7.3, U.N. Doc. CCPRICITS/DI916/2000, : See Delgado Pae: y. Columbia, Human Right Committee, § 5.5, UN. Doe. CCPRICID/195/1985. "Intemational Covenant on Civil and Political Rights, art. 2-3, Dec. 16, 1966, 999 UN.T.S, 171 °* See Marcellana . Philipines, Human Rights Committee, $9, U.N. Doe, CCPRICI94/D/1560/2007. °® See Swati Saxena, Recourse Rare for Witch Hunt Victims in India, WOMEN’S E-NEWS, Sept. 17, 2009, hip: www. womensenews.org/atielecfin/dyn/aid/324 /eontewarchive; Arpita Sutradhar, Rural India Targets Women in Witch Hunts, ORNTO (India), May 27, 2006, http:/www.orato.com/self-help/rurl-india-targets-women- witch hunts, 25percentage of those engaging in the practice are prosecuted and convicted.’ Given the obligation to use reasonable and appropriate means to protect those that have been threatened, a complete failure to investigate amount to a violation of the obligation to investigate threats to security, Moreover, given the obligation to provide remedies, several provisions of the Indian Penal Code should be used to punish the perpetrators of witch hunts that violate the ICCPR right to security,'”” or additional laws should be passed to ensure the full enjoyment of the right to security of the person for victims of witch hunting. The failure to prosecute thus amounts to a violation of the obligation to investigate threats and a violation of the obligation to provide effective remedies. 5. India has an obligation to protect the right to adequate housing, and it fails in this obligation. a, India has an obligation to protect the right to adequate housing. Customary international law and treaty law protect the right to adequate housing. Article 25 of the UDHR provides that everyone “has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, and medical care and necessary social services.”'** Several provisions of the International Covenant of Economic, Social, and Cultural Rights (ICESCR), to which India is a party,'® also apply to the deprivation of property that victims of witch-hunts may experience. Article I of the ICESCR provides that “{a}ll peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co- operation, based upon the principle of mutual benefit, and international law. In no case may a © See Swati Saxena, Recourse Rare for Witch Hunt Victin in India, WOMEN'S E-News, Sept. 17,2009, hp. womensenewsorg/artclfia/dye/aid/3241/contenVarhive pia PEN. CODE §§ 320 & 322 (causing “grievous hurt"), § 325 (causing hurt), §§ 339-48 (wrongful restraint and confinement, $§ 359-69 (kidnapping and abduction). °® Universal Declaration of Human Righs, G.A. Res. 2174, at 71, UN. GOAR, 3d Ses, Ist len. mig, UN. Doe AJB1O (Dec. 12,1948), "India acceded to the ICESCR on Apri 10,1979 26people be deprived of its own means of subsistence.” Article 11 of this Covenant recognizes the “right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of li “ ing conditions Finally, Article 14 of CEDAW provides that State Parties will take appropriate measures to eliminate discrimination against women in rural areas, ensure that they will participate in and benefit from rural development, and that they will “enjoy adequate living conditions, particularly in relation to housing.”"“' Thus several sources bind India to ensure the right to adequate housing, The right to adequate housing necessarily implicates the problem of forced evictions, which the Committee on Economic, Social and Cultural Rights (CESCR) considered in its General Comment to Article 11. ‘The Committee noted that legal security from forced evictions is one of seven criteria for determining whether the state has protected the right to adequate must also “ensure that the housing.'? Not only must the state refrain from forced evictions, but it law is enforced against its agents or third parties who carry out forced evictions.”'? Moreover, the right to housing “should be seen as the right to live somewhere in security, peace and 24” While the provisions of ICESCR are generally constrait dignity. wed because the rights provided for in the Covenant may be realized progressively, and countries can pursue the © Intemational Covenant on Economie, Social, and Cultural Rights, at 11, Dec. 16, 1966, 993 U.N-TS. 3, “ Convention on the Elimination of All Forms of Discrimination Against Women art. 14(h), Dec. 18, 1979, 1249 UNTS. 1. "© UN, Committee on Economic, Social, and Cultural Rights, Special Rapporteur on Adequate Housing, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, . UN, Doe. E/CN.4/2001/51 (lan. 25, 2001) (orepared by Miloon Kothari). Forced evictions are “the permanent or temporary removal against their will of individuals, families and/or communities from homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. Id ‘UN, Committee on Eeonomic, Social, and Cultural Rights, Economie and Social Council, The Right fo Adequate Housing: Forced Evietions: CESCR General Comment 7,20, UN. Doc. E/1998122 (May 20, 1997). "UN. Committee on Economie, Socal, and Cultural Rights, The Right ro Adequate Housing (Art. 11(I))i CESCR General Comment 4,47, UN. Doc. E/1992/23 (Dec. 13, 1991),realization of rights to the maximum of their available resources, ' the obligation to provide legal protection from forced evictions and the obligation to provide effective monitoring of the housing situation in the State concemed both fall under one of three rights that state parties must take steps immediately to protect;'* the reference in Article 2(1) to progressive realization is irrelevant when forced evictions by third parties are involved.'*” Under these provisions, India has a positive obligation to prevent forced evictions. b. India violates its obligation to protect the right to adequate housing. India has violated its obligation to protect the right to adequate housing. Because a desire to possess the victim's property is one of the main reasons for witch hunting in India,'** the victim’s rights under Article 2 of the ICESCR are not being protected, Women are not allowed the right to dispose of their own wealth and resources and are not ensured of their means of subsistence, Furthermore, India is failing to protect victims’ Article 11 right to be free from forced evictions where their property has been confiscated by their attackers or where they have been forced to flee their village, For example, the Jharkhand High Court failed to recognize property dispossession as a reason for witch hunting; rather, it ignored the victim’s testimony that her attackers had accused her of being a witch for two years and ruled that the attack was precipitated by a property dispute.'*” It failed to see the link that often exists between accusing a woman of being a witch and a desire to gain property controlled by the woman or her family.'° ' international Covenant on Economie, Social, and Cultural Rights, at. 2, Dec. 16, 1966, 993 UNS. 3. 6S MAGDALENA SePULVEDA, THE NATURE OF THE OBLIGATIONS UNDER THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS 176 (2003), "© MAQDALENA SEPULVEDA, Thi NATURE OF THE OBLIGATIONS UNDER THE INTERNATIONAL COVENANT ON EcoNoMIC, SOCIAL, AND CULTURAL RIGHTS 177 (2003). "§ See Swati Saxena, Recourse Rare for Witch Hunt Victims im India, WOMEN’S E-NEWS, Sept. 17,2009, hntp:/www.womensenews.org/articlefin/dyn/aid/3241 /contextarchive: Subie Bhaumik, “Witch Family Killed in India, BBC News, Sune 12, 2008, available at htp:/inews bbe,cosuk/2hi'south_asin/7449825 stm; MITA BARMAN, PERSECUTION oF WoMEN: WiDoWs AND WITCHES 8-19 (2002) © See Tula Devi & Others v. State of Jharkhand & Another (Apr. 18, 2006) "© See Tula Devi & Others w. State of Jharkhand & Another (Apr. 18, 2006) 28Furthermore, the court has failed to protect “the right to live somewhere in security, peace, and dignity” by overturning the convietions of defendants who entered a victim’s home, attacked her, and then kidnapped her.'*' Several international and domestic bodies have acknowledged the link between witch- hunting and property rights. In addition to the Committee on the Elimination of Discrimination Against Women, '* the U.N, High Commissioner on Refugees has noted that witch-hunts are the product of disputes over land. '“? In recognizing the severity of the problem, the High ‘Commissioner recommended further study of the causes of the problem. Consequently, India should enact laws that protect victims of witch-hunts from the deprivation of their property and from being forced out of their villages. It must then ensure that these laws are effectively enforced to punish violators of these rights and deter future violators. 6. India has an obligation to ensure the right to access competent national tribunals or judicial authorities, and it violates its obligation to protect this right. a. India has an obligation to protect the right to access competent tribunals or judicial authorities. International covenants and customary international law provide that India must ensure access to national tribunals and judicial authorities in order to provide for an effective remedy for acts that violate fundamental rights. Under Article 2 of CEDAW, signing members agree to “ensure through competent national tribunal and other public institutions the effective protection of women against any act of discrimination.”"** Similarly, under Article 2 of the ICCPR, “any person claiming [a remedy to the violation of his rights under the Convention] shall have his 'S! Soe Madhu Munda & Others v. State of Bikar (Apr. 24,2003). "= UN. Committee on the Elimination of Discrimination Against Women, Concluding comments ofthe Committee ‘nthe Elimination of Discrimination Against Women: India, § 26, UN. Doe "© See UNHCR, UN Refugee Agency: Policy Development and Evaluation Service, Jill Schnocbelen, Witchcraft allegations, refugee protection and human rights: A Review ofthe Evidence, at 9-11, available at htp: www reliefweb invew/ib.nsf/db9O0sid/RWST-7RALTE’Sfile/unhcr-jan2009.pdf?openelement, "See Convention on the Elimination of All Forms of Discrimination Against Women, at. 2, Dee, 18, 1979, 1249 UNTS. 1.right thereto determined by competent judicial administrative or legislative authorities,” and “competent authorities shall enforce such remedies when granted.”'® Moreover, article 14 of the ICCPR provides that individuals are to be “equal before the courts and tribunals,” and that in the determination of “his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law.”"° Further, Article 14 “applies not only to procedures for the determination of criminal charges nist but also to procedures to determine their rights and obligations in a suit at law. Finally, similar obligations are apparent in customary international law, as the UDHR provides, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”'** This is further fleshed out in Article 10 of the UDHR, which provides that everyone is entitled to a fair and public hearing not only for the determination of criminal charges, but also “in the determination of his rights and obligations.”'” These international covenants together suggest a right to access the judicial branch of government for the effective determination of rights, b, The Indian government has violated the international obligation to protect the right to access national tribunals. Access to the courts by women who are the victims of attacks or dispossession is, seriously lacking, While such attacks constitute criminal violations under the law, and thu it is not normally required that victims initiate suits, access to the courts in the sense of testifying as, witnesses to confront attackers and in having prosecutors pursue the prosecution of offenders is '5S See Convention onthe Elim UNTS.13, 'S Intemational Covenant on Civil and Political Rights, rt. 14, Dec. 16, 1966, 999 UN.TS, 171 NN Human Rights Committe, JCCPR General Comment 13: Equality Before the Courts, available at te /iwww.unhehr chibs!doe.nsfi(Symbol)"bb7224 16:295f264e12563ed0049dfbd?Opendocument. "Universal Declaration of Human Rights, GA. Res. 217A, at 71, UN. GOAR, 3d Sess, Ist plen. mtg, U.N. Doc ‘A/810 (Dee. 12, 1948). °® Universal Declaration of Human Rights, G.A. Res. 217A, at 71, UN. GOAR, 3d Sess, Ist plen. mtg., UN. Doc ‘AI810 (Dec. 12, 1948), tation of All Forms of Discrimination Against Women, at, 2. Dec. 18, 1979, 1249 30limited. Most cases are not documented or prosecuted because itis difficult for women to travel from the isolated regions that they live in to file reports.' According to the Free Legal Aid Committee, “[I]ess than two percent of those accused of witch-hunting are actually convicted” of acrime in India.'"' In cases that do come to court, accused witch-hunters often go unpunished. Of the eases that we reviewed, approximately 57 % of the convictions for murder or assault of an accused witch that were appealed were reversed on appeal." Given that only two percent of those accused of witch-hunting are convicted in the first place,' the high rate of reversal is especially significant because it means that a very low proportion of those committing prohibited acts are punished. ‘The reversals in these cases stemmed from two major causes: failure to believe a witness or procedural errors. In Tula Devi and Ors. v. State of Jharkhand, the court quashed recognition 1¢s Act because it failed to believe for the offence under the Prevention of Witch (Daain) Pract the testimony of a woman who was dispossessed of her property. Similarly, in Madhu Munda and Ors. v. State of Bihar, the court set aside a conviction upon an appeal, despite the testimony of four witnesses that the victim was dragged from her home and accused of being a witch, pointing to the delay in reporting the incident and the fact that the prosecution’s witnesses all knew one another." Moreover, in Tufani Byuiyan and Ors. v. State of Jharkhand, the defendants’ convietions were set aside though they were accused of killing a man due to "© See Swati Sanena, Recourse Rare for Witch Hunt Victims in India, WOMEN'S ENEWS, Sept. 17, 2009, hap: www.womensenews.ora/artile cfin/dyn/aid/324 Veontext/archive. "= See Swati Saxena, Recourse Rare for Witch Hunt Victims in India, WOMEN’S ENEWS, Sept. 17, 2009, hgp:wwwwomensenews.org/artile cfin/dyn/aid/324 /context/archive "= Of the 14 High Court cases found in the couse of research for this bref, 8 were reversed on appeal. See infra notes 77, 78, 79, nd 80 and accompanying text. "5 Soe Swati Saxena, Recourse Rare for Witch Hunt Victims in India, WoMEN’S E-News, Sept. 17, 2009, hitp:wwwwawomensenews.ore/aticlecfin/dyn/aid/3241/contextarchive " See Tula Devi & Ors. x State of JharBhand & An, Jharkhand H.C. (Apr. 18,2006). “See Madhu Munda and Ors. . State of Bihar, (2003) (Jharkhand High Cour), available at htp:/hww:indiankanoon.org/doe/1273184/ 31suspicions that he was a witch, on the grounds that the cause of death was not appropriately established, despite the presence of eyewitnesses to the attack.'® In these three cases and in several other cases, '"’ the convictions of individuals who were accused of witch-hunting were reversed on appeal due to a failure to believe eyewitness testimony. In other cases the reversal stemmed from procedural errors in pursuing prosecution, In Samsul and Ors v, State of Jharkhand, for example, the court set aside the convietion of ten individuals for murder, with instructions to reinstitute the case under different charges. '** Both a lack of credulity and procedural errors point to substantial problems in the judicial process because either guilty parties are being let free or truly innocent parties are being exculpated. Even the second option reflects poorly on the judicial process because the true offenders are not being prosecuted. Further, the data may suggest a process that involves inadequate investigation.’ ‘Moreover, in cases where individuals are convicted of a crime, the courts have opted in some instances to mitigate the punishment for murder where the defendant has committed the crime based on a belief that the victim was a witch, Ina case before the High Court of Patna in "See Tufani Bhuiyan And Ors v. State of Jharkhand, (2006) (Jharkhand High Court), available at hitp:/wwwindiankanoon.ore/doe%43507 "See, eg. Doman Munda and Anr. ¥. State of Bihar, (2004) (Jharkhand High Court (finding thatthe accused should be acquitted because although there was an eye-witness tothe event, the witness attributed the cause of death to stick, whereas the medical evidence suggested that in addition to a blunt object, the Killer used a sharp object as ‘well; Birsa Shir v. State of Bihar, (2004)Jharkhand High Cour) (fining thatthe testimony of the sole eyewitness ‘was unceliable because he was an interested party and because the alleged scene of the erime did not contain blood), Jetha munda v. State of Jharkhand, (2004) harkhand High Court (reversing a convition onthe grounds that the lower court erroneously relied on a child witness and an extra-judicial confession); Rasmuni Marandi v State of Bihar (2007) (Iharkhand High Court). But see Buu Munda and Ors. v. State of Bihar (2003) (Jharkhand High Court), Fekan Singh and Ors v. State of Jharkhand (2008) Sharkhand High Court), Kondi Munda and Ors v. State (of Bihar (2002) (Jharkhand High Court, Jagat Lohar and Kaila Lohar v State of Jharkhand (2007) (Sharkhand High Court), Babu Ram \frumu and Ors. v. State of Jharkhand, (2006) (harkhand High Cour), and Tula Sardar v. ‘State of Bihar (2003) (Shatkhand High Court) forthe contrary result, where the high cout affirmed the conviction of the witeh-hunter. "See Samsul and Ors. State of Jharkhand, (2008) (Jharkhand High Court), available at htp:/www indiankanoon,orgdoe/! 194046! "© See Section 2 and accompanying text 32Bihar'”®, the court reduced the sentence of a convicted defendant, holding that his “superstitious belief that he was morally justified in committing the murder of [the victim] whom, he thought, had caused the death of his brother,”"”' was a mitigating factor. 7. India has an obligation to adopt legislative measures to protect against witch- hunting, and it violates this obligation. a. India has an obligation to adopt legislative measures to protect against witch-hunting. India has an international legal obligation to adopt legislative measures to protect women from the practice of witch-hunting. This obligation is expressed in various international covenants, Article 2 of the ICCPR provides that “[w]here not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps...to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.” "While the subject of this brie i the witch-hunting in Jharkhand, given the close relationship between Bihar and Jharkhand and the fact thatthe state was carved out of Bihar only recently, it proves instructive to look atthe case law stemming from Bihar as well. The Bihar Reorganization Act of 2000 provides that “al the laws enforce [sic] immediately before the appointed day i.e. 15 November, 2000 in the erstwhile State of Bihar remain effective, continue, and are applicable in both the successor States of Bihar and Jharkhand, until otherwise provided by a ‘competent Legislature or the competent authority, irrespective of reorganization of Stat [sic].” Ram Badan Singh vs State of Jnarkand (2003) Jharkhand High Court). While the Bihar Reorganization Act defines a la as “any enactment, ordinance, resolution, order, bye-law, rule, sche struments having immediately ‘before the appointed day, the force of law in the whole or in any party of the existing State of Bihar, Bihar Reorganization Act of 2000, No. 30 (2000) (India), in Ram Badan Singh v. State of Jharkhand, te court construed the Act to apply not just toa law passed by the legislature, but also to statutory rules, instructions, and executive instructions and orders. Ram Badan Singh vs. State of Jharkhand (2003)Jharkhand High Cour) " Samtul Dhobl and Another v. State of Bihar (Mar. 30, 1993). ® Intemational Covenant on Civil and Political Rights, art. 2, Mar. 23, 1976, 999 UNTS 171.The importance of the obligation to enact legislative measures is expressed inthe General Comments that interpret these documents. The ICCPR provides that the signing State must ensure that “any person whose rights or freedoms are herein recognized are violated shall have an effective remedy, notwithstanding thatthe violation has been committed by persons acting inn offical capacity.” In General Comment No. 31, the Committee on Human Rights noted tht the “requirement Under article 2, paragraph 2, to take steps to give effect to the Covenant rights is unqualified and of immediate effect. 4 failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State.” U.N. Human Rights Committee, General Comment No. 31/80] Nature of the General Legal Obligation Impased on States Parties o the Covenant, 14, CCPRIC/21/Rev. Add. 13 33Similarly, CEDAW obligates states to “adopt appropriate legislative and other measures, including sanctions where appropriate.”"”* Ratifying countries also agree to “take all appropriate measures ... to modify or abolish existing laws, regulations, customs, and practices which constitute discrimination against women.”!* In practice, Article 2 has been interpreted as imposing positive obligations on the state ‘with respect to the protection of women. For example, in 4.7. v. Hungary, a woman claimed that Hungary's failure to protect her from domestic violence due to its repeated rulings against her ‘when she attempted to find protection from her common law husband constituted a violation of Article 2.’ She claimed that irrationally lengthy criminal procedures, lack of availability of protection orders, and the fact that her abuser spent no time in custody constituted violations.'"° Noting that it was concerned about “the prevalence of violence against women and girls” and its particular concern that “no specific legislation has been enacted to combat domestic violence and sexual harassment,” the court found that Hungary had violated article 2.'7" Significantly, the obligation to adopt legislative measures to protect the rights of persons includes more than the mere obligation to enact legislation: a country must enforce the rights that are legally provided. For example, in General Comment No. 31 to the ICCPR, the Human Rights Committee notes that with respect to Article 7°s guarantee against torture and simi cruel, inhuman, and degrading treatment, Article 6°s guarantee against summary and arbitrary killing, and the provisions against enforced disappearance, “failure to bring to justice °° Convention on the Elimination of All Forms of Discrimination Against Women, at 2, Dec. 18, 1979, 1249 UNTS.13, " Convention on the Elimination of All Forms of Discrimination Against Women, art. 2, Dec. 18, 1979, 1249) UNTS.13, ° AT. v. Hungary, UN. Committee on the Elimination of Discrimination Against Women, No, 2/2008, available at hup:/wworw.worldli.org/cgi-binidisp pVint/cases/UNCEDA W/2005)2.huml2queryarticle¥202. "AT. », Hungary, UN. Committe on the Elimination of Discrimination Against Women, No. 2/2003, available at hitp:/worw.werldli.org/cgi-bin/disp plin/cases/UNCEDA W/2005/2.him!?queryarticle%<202. "AT. v. Hungary, U.N. Committe on the Elimination of Discrimination Against Women, No. 2/2003, available at Inpsiwww.sworldlit.ong//ewi-bin/disp.pVintcases/UNCEDA W/2005/2 html ?query=article®4202. 34perpetrators of such violations could in and of itself give to.a separate breach of the Covenant.”'”* Further, violations of Covenant rights still take place even where formal remedies exist, if the remedies fail to “function effectively in practice.”"” Similarly, the Committee on the Elimination of Discrimination Against Women has found that the State may be responsible for private acts if they “fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.” As a result, international obligations inhere not only an obligation to enact legislative measures, but also to enforce the rights provided by those enactments. Finally, the efficacy of remedies includes an obligation to take into account the characteristics of at-risk groups. The right to effective remedies is interpreted by the Human Rights Committee in General Comment No, 31 to mean that “such remedies should be appropriately adapted so as to take account of the special vulnerabi of certain categories of person, including in particular children.”"*" b, India fails in its legal obligation to adopt legislative measures to protect The Indian government has failed in its obligation to prevent witch-hunting through the enactment of legislative measures because while such measures exist, the measures are not sufficient and are not adequately enforced. While there is theoretically a combination of national See UN. Human Rights Committee, General Comment No, 31: Nature ofthe General Legal Obligation Imposed ‘an States Parties tothe Covenant, $18, CCPRIC/Rev.1/Add.13, 1¢ U.N. Human Rights Committee, General Comment No. 31: Nature of the General Legal Obligation Imposed ‘0 States Parties to the Covenant, § 20, CCPR/C/Rev. H/Add.13. "See UN Committee on the Elimination of Discrimination Against Women, General Recommendation 19: Violence Against Women, UN. Doc. No. A/47/38. See also Goekce v. Austria, Commitee on the Elimination of Discrimination Against Women, $9, No. 5/2005, at 12.1.2, CEDAW/C/39/D15/2005 (2005) (“{IIn order forthe individual [victim] to enjoy the practical realization of the principle of equality of men and women and of her human rights and fundamental freedoms, the politica will tht is expressed in the aforementioned comprehensive system of ‘Austria must be supported by State actors, who adhere to the State party's due diligence obligations.) U.N, Human Rights Committee, General Comment No. 31: Nature of the General Legal Obligation Imposed on ‘States Parties fo the Covenant, § 15, CCPR/C/Rey.1/Add,13, 35and state-level laws that should cover the cri es, these laws are ineffective because they are inconsistent and inadequately enforced and prosecuted.'? ‘The framework that exists for prosecuting individuals on the national level is inadequate The statute under which offenders are most often prosecuted’ is a statute under the Indian Penal Code, which provides a punishment of up to one-year imprisonment and/or a fine of up to 1,000 rupees for “voluntarily causing hurt.”"*' However, this relatively minor punishment does little to deter potential witch hunters: the penalty is the same for slapping another person as itis for beating and torturing an accused witch.** Although other provisions exist that would provide for greater punishment," this is most often the law used to prosecute the perpetrators of witch- hunts, Alternatively, in West Bengal, a study found that where the witch-hunts resulted in the death of the victim, the perpetrators were frequently charged under Section 302 of the Indian Penal Code relating to murder.'*” ‘On the sub-national level, Jharkhand does have a statute that specifically addresses the problem of witch-hunting. Under the Jharkhand Prevention of Witch (Dain) Practices Act the ® Soe Swati Saxena, Recourse Rare for Witch Hunt Vietims in India, WomEN's E-NEWS, Sept. 17,2008, hutp:/svww.womensenewsorg/artcle.cfn/dynaid324 lcontexarcive; Phulia Tud and tna v. The State of Bihar (Now Jharkhand), INSC 924 (Sept. 14,2007) "© Sze Swati Saxena, Recourse Rare for Witch Hunt Victims in India, WOMEN'S E-NEWS, Sept. 17,2009, Innp:www.womensenews.orgarticleefn/dym/aid/3241contexvarchive; Phulia Tuc anda v. The State of Bihar (Now Jharkhand), NSC 924 Sept. 14,2007), "eiypia PEN. CODE, § 323, "5 pia PEN Cove, § 32: '% Elsewhere, the Indian Penal Code eriminalizes murder and provides a penalty of death or life imprisonment, as cll asa fine, INDIA PEN. CODE, §§ 300 & 302, Section 354 imposes a penalty of up to two years imprisonment for hoever assaults or uses eriminal force to any woman, iatending to outage or knowing it tobe likely that he will thereby outrage her modesty.” id. §354. "In the case of the perpetrator acusing a woman of witchcraft so that he may obiain her propery, Section 382 provides a ten year prison Sentence for “whoever commits the having made preparation for causing death, or hurt or retain... in order tothe commiting of theft... inorder tothe retaining of property taken by such thf. fd § 382. Other penal code provisions that are relevant o crimes committed against supposed witches relate to wrongful restraint and confinement, id. §§ 339-48, causing “grievous hur." id- $§ 320 & 329, kidnapping and abduction, i. §§ 359-69, rap, id §§ 375-Gand defamation, id. $§ 499 501 ™ See ANANYA BARUYA, BELIEF 1s WITCH: WITCH KILLING IN DOOARS 66-73 (2005). 36punishment for witch-hunting is minimal.'* An offender who identifies a woman as a witch can be imprisoned for three months and fined 1,000 rupees, and a person who causes a woman physical or mental torture by naming her a witch can be imprisoned for up to six months, fined 2,000 rupees, or both.'"” Finally, the act prohibits causing harm to a woman in the attempt to cure her, and the penalty for such an act is one-year imprisonment, a fine of 2,000 rupees, or both." However, although legislation exists to enforce the rights of women who are victimized through witch-hunting, Jharkhand still fails to follow the tenets of international law. The first major problem with respect to Jharkhand is that the law that it has enacted in order to combat witch-hunting is inconsistent with the national law. Under the national law, the most common, punishment provides that individuals may be imprisoned for up to one year and forced to pay a fine of 1000 rupees, but the law in Jharkhand effectively reduces the penalty by providing that ‘one who physically or mentally tortures a witch is subject only to imprisonment for up to six months and a fine of 2000 rupees. Although criminals are often charged with violations both crimes,'”" it is unclear how conviction of both offenses influences sentencing. As a consequence, the lack of alignment and failure to increase rather than decrease the penalties for accusing a woman of being a witch show a serious gap in the legislative framework Second, Jharkhand fails to effectively enforce the laws in place. The failure to bring offenders to justice despite the presence of available legislative measures constitutes a violation of international law. With respect to witch-hunting in India, less than two percent of those See National Commission for Women, A SITUATIONAL ANALYSIS OF WOMEN AND GIRLS IN JHARKHAND 89, available at btp:/new.nic.in/pdfreports Gender®420Profile-Tharkhand pal. "See National Commission for Women, A SITUATIONAL ANALYSIS OF WOMEN AND GIRLS IN JHARKHAND 89, available a bip:/new.nic.in/pdtreports/Gender%20Profile-Iharkhand pal. "Soe National Commission for Women, A SITUATIONAL ANALYSIS OF WOMEN AND GIRLS IN JHARKHAND 89, ‘available a htp:!new.nic.in/pdtreports Gender*420Profile-Iharkhand pal. "See, e.g Fekan Singh & Others v. State of Jharkhand (June 26, 2008),...Samsul and Others v State of Iharkhand (Jun. 16, 2008), Kishore v. State of Jharkhand (March 14, 2008) 37accused of witch hunting are ever convicted," Thus, though India is to some extent formally endowed with the appropriate apparatus to address the problem, in that the legal provisions described above exist, violations these remedies do not funetion with respect to India. Third, given that an “effective remedy” means that remedies are appropriately adapted so as to take account of the special vulnerability of certain categories of person, the state fails in this respect when addressing witch-hunting. The victims of witch-hunts are usually women," the practice is widespread in areas of lower socioeconomic development," and those hunted are isolated ‘often widows or other marginalized members of society.'*’ The victims often live regions where itis difficult to travel to police stations in order to file reports, meaning that most luals lack cases go unreported.'* Further, even when reports are filed, because these indi political influence as Dalit and Adivasi women and because they live on the outskirts of cities, there is little impetus to investigate and prosecute offenses.'°” Given the characteristics of these groups and the low rate of conviction, itis apparent that the state fails to take into account the vulnerabilities of these at risk groups when fashioning its remedies. ‘The gravity of the problem has attracted international attention from the Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions. After studying the problem, the Special Rapporteur concluded that in most instances the governments concerned have not “met ' See Swati Saxena, Recourse Rare for Witch Hunt Victims in India, WOMEN'S E-NEWS, Sept. 17,2008, hitp:/iwww.womensenevs orgarticle.fin/dyn/aid/324 /context/archive; Phulia Tudu and Ana v. The State of Bihar (Now Jharkhand), [NSC 924 (Sept. 14, 2007), "© See RIN. SALETORE, INDIAN WITCHCRAFT 203(1981) "9 SoutaiLA KAPUR, WITCHCRAFT IN WESTERN INDIA 7 (1983), "5 See Indra Mushi, Women and Forest: A Study of the Warlis of Western India, § GENDER, TECH. & DEV. 177 (2001) "See Swati Saxena, Recourse Rare for Witch Hunt Vietims in India, WOMEN'S E-NEwS, Sept. 17, 2009, lagp/ww.vomensenews.org/artclecfin/dyn/aid/3241/contexvarchive, "See Meena Kandasamy, Dangerous Dalit Women and Witel- Hunters, ULTRA VIOLET, Apr. 14, 2008, bntp/ultraviolet.in/2008/04/14/dangerous-dalit-women-and-witch-hunters, 38.their due diligence obligations to prevent such killings.""”* Finally, both the Committee on the Elimination of Discrimination Against Women’ and the Special Rapporteur found that in addition to other solutions, the Indian government needed to investigate and prosecute wit hunting.” VI. Recommendations Because the root of witch-hunting is grounded in conceptions of gender inequality, and because it is entrenched in issues of control of land and inadequate enforcement, the solutions must unearth and address these root causes. As a result, the following would improve compliance with India’s international and domestic obligation to prevent witch-hunting: A. Amending existing law and improving enforcement Several amendments to existing law can significantly improve India’s conformity with its legal obligations. First, while the Prevention of Witch (Daain) Practices Act exists in Jharkhand in order to prevent the dispossession and violence that results from witch-hunting,*"' no central legislation exists addressing the problem of witch-hunting in India.””” Amending the Indian Penal Code to provide stiffer penalties for those who commit violence or dispossession as a consequence of witch-hunting would discourage the commission of such crimes "5 See Special Rapporteur on Extra-udicial, Summary or Arbitrary Executions, Promotion and Protection of All Human Righas, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, . delivered to Human Rights Council, 57, ATHRC/I1/2 (May 27, 2009) " See UN. Committee on the Flimination of Discrimination Against Women, Concluding comments ofthe Committee on the Elimination of Discrimination Against Women: India, 27, U.N. Doc. CEDAWIC/INDICOV3 (Feb. 2, 2007), ®® See Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions, Promotion and Protection of All Human Rights, Civil, Political, Feonomic, Social and Cultural Rights, Including the Righe ro Development, delivered to Human Rights Council,§ S7-—S8, AMMRCI11/2 (May 27, 2009). ©" Prevention of Witch (Dain) Practices Act, No. 9 (1999)(Bihar, ™ See Swati Saxena, Recourse Rare for Witch Hurt Victims in India, WOMEN'S E-NEWS, Sept, 17, 2009, hup:/vww.womensenevs.org/artcl.cfin/dyn/aidi324 Veontext/archives Phulia Tad and Ana v. The Stare of Bihar (Now Jharkhand), INSC 924 (Sept. 14, 2007) (noting that the National Commission for Women is currently advocating forthe adoption of national legislation). 39Moreover, there is currently a lack of coordination between the IPC statutes that ean be used to prosecute witeh-hunters and the Prevention of Witch-Practices Act. Under the current regime in Jharkhand, the Prevention of Witch (Daain) Practices Act provides that individuals who identify a witch can be convicted for up to three months and fined 1000 rupees, while those ‘who cause the torture of or attempt to cure a purported witch may be sentenced for up to six months and fined up to 2000 rupees.”"* Given that the penalty for violating the provision of the IPC that witch-hunters are most often charged with, voluntarily “causing hurt” under § 323," already provides greater than the penalties provided for under the Prevention of Witch-Practices Act, the act appears to do litle to promote deterrence, This remedy is already meager in providing only the possibility of one year of imprisonment, and the Witch-Practices Act reduces even that. While many individuals who committed violence with the purported belief that the target of violence was a witch were charged under both the IPC and Jharkhand’s Prevention of Witch-Practices Act,” there are appears to be no systematized methodology for designing sentences when individuals are convicted under both. A more coherent system would either provide penalties that increased the penalties provided for under the IPC, articulated a concrete system of tacking the penalties for violating the Prevention of Witch-Practices Act onto the end ofa sentence for a violation of the IPC, or integrate increased penalties into the relevant provisions of the Indian Penal Code when witch-hunting was the motivation for committing the act. Further, the law in Jharkhand must be amended to preclude the possibility of mitigating the sentence of an individual who commits a crime with a belief that the target of his erime is a ® Prevention of Witch (Daain) Practices Act, No. 9 (1999)(Bihar) INDIA PEN. Cove § » Seo, eg Fekan Singh & Others. State of Jharkhand (une 26, 2008), Samsul and Others». State of Jharbhand (Gun. 16, 2008), Kishore. State of JharBhanal (March 14, 2008). 40witch, As mentioned above, in Samtul Dhobi and Another v. the State of Bihar, the court expressly mitigated the sentence of a defendant who committed a crime based on the belief that the target of his crime was a witch who had killed his brother." ‘The law must consequently be amended to expressly bar judges from engaging in the mitigation of sentences, and procedural safeguards must be created to prevent judges from exercising such discretion, Finally, a major impediment to preventing witch-hunting in Jharkhand comes from the failure of police and other officials to adequately investigate and prosecute those responsible for committing atrocities. India is required to take affirmative measures in order to ensure that police officials adequate investigate and state officials prosecute offenders.”” Measures that Jharkhand should enact in order to increase investigation and prosecution include constructing, concrete deadlines within which officers must complete investigation of crimes involving witch- hunting, Bangladesh, for instance, has imposed similar deadlines for police in order to combat acid violence; police can be held legally responsible for any negligence, misconduct and procedural inefficiency during the investigation ofa case, and are legally obligated to complete investigations of acid attacks within 60 days.” Creating deadlines within which prosecutors ust file cases against accused offenders who are motivated by witch-hunting within a specific time period may also ensure greater enforcement."” Additionally, given the prevalence of the problem within Jharkhand, the state should e1 te a special unit within police departments to confront the problem, designating officers who are specially trained to deal with gender based violence investigate the matter. Just as the New Delhi High Court has mandated that the state ®® See Samtul Dhobl and Another v. State of Bihar (Ma, 30, 1993) = UN, Human Rights Committee, General Comment No. 31: Nature ofthe General Legal Obligation Imposed on ‘Siates Parties tothe Covenant, § 18, CCPRICIRev.1/Ad13. See Saira Rahman, Shattered Reflections: Acid Violence and the Law in Bangladesh, 18 Human Rights Solidarity 13, 14 2008), 2° This ean be compared withthe Bangladesh's requirement that specially created Acid Control Tribunals are required to complete trials of persons perpetrating acid violence within 90 days, Saira Rahman, Shattered Reflections: Acid Violence and the Law in Bangladesh, 1S Human Rights Solidarity 13, 4 (2003). 4must take special measures when dealing with child victims of sexual abuse,""" including designating officers who are specially trained to deal with child victims of sexual abuse,2'' so too can the court mandate that the police force employ persons with special expertise to handle violations involving witeh-hunting, B. Sensitizing police and government officials ‘A large part of the problem of witch-hunting, as described above, is the problem of enforcement.” Indeed, even as legal mechanisms exist to prevent witch-hunting, only approximately two percent of those cases that are brought result in the accused being convicted.”'* Puja Roy notes that sensitizing the police and officials “might enable the ‘administration to be more understanding and open about crimes against women,” which may prompt police enforcement to recognize witch-hunting as an issue of violence against women.” Consequently mandatory gender-sensitivity training may serve the purpose of making police officers more cognizant of the problem of witch-hunting and the need to combat the practice. C. Supporting the formation of a support group for women who are branded as witches 2 See Virender w. State of NCF of Delhi, (2008) CHA. No. 121/2008 (New Delhi High Court 2" See Virender . State of NCT of Delhi, (2008) Cr.8. No. 121/2008 (New Delhi High Court) (mandating that the investigation shouldbe performed by “preferably a lady officer, sensitized [ue to] appropriate training to deal with eli vitims of sexual erie") See Swati Saxena, Recourse Rare for Wich Hun Victims in India, WOMEN’S E-NEWS, Sept. 17,2009, Ingp:www.wwomensenews.org/antileefi/dynaid324I/contextarchive; Phulia Tudu an Ana v. The Stat of Bihar ‘Now Jharkhand), [NSC 924 (Sept. 14,2007) (noting the problem of enforcement and advocating forthe taining of pice officers in order to inrease receptiveness in handling such cases) "See Swati Saxena, Recourse Rare for Witch Hunt Victims in India, WOMEN'S E-NEWS, Sept. 17, 2009, Ingp:/www.womensenews.orwartile findyn/aid’324Vcontextarchive; PhuliaTudu ae dnav. The State of Bihar (Mow Jharkhand), INSC 924 (Sept. 14, 2007) * Sze Puja Roy, Sanetioned Violence: Development and the Persecution of Women as Witches South Bikar, 8 DEVELOPMENT IN PRACTICE 136,146 (1998). 42The government should create a fund to support the creation and maintenance of support ‘groups for women who are branded as witches. First, the formation of a woman’s group can address the foundational problem that prevalent customs and attitudes allow for the mistreatment of women through advocacy programs. In addition, such groups could provide shelter, protection, and rehabilitation to displaced women who are the victims of witch-hunts. To the extent that such groups can form support networks that can provide adequate replacement shelter and assistance to women who have been displaced or hurt due to wit h-hunting, such groups may help to “provide for the rehabilitation of, and compensation to, victimized women,”*"* thus bringing India into conformity with its international legal obligations. Recently such funds have been mandated in India by the High Court of Karnataka to cover the costs of rehabilitation for ."'® and similar funds have been created in Bangladesh to support the s of acid violenes treatment of victims of acid violence.”"” D. Mandating educational and health programs A large part of the problem having to do with witeh-hunting has to do with education, While cultural beliefs about the existence of witches may be difficult to challenge and de- stabilize,”"* increased education about the causes behind given forces might make it more difficult to believe that given occurrences are the product of witch-crafi, Illnesses often provide the excuse to accuse a woman of witchcraft,” and if there is increased knowledge about the true 2'5 See supra note 106 and accompanying text. 2 See Seo Camey, dtd Attacks on Women in India Prompt Protests, NPR, Nov. hnps!Avww.npr.org/templates/story/story-php?storyld=13760338, 2" See Saira Rahman, Shattered Reflections: Acid Violence and the Law in Bangladesh, 1S Human Rights Solidarity 15, 14 (2005), 2'See Puja Roy, Sanctioned Violence: Development and the Persecution of Women as Witches in South Bihar, 8 DEVELOPMENTIN PRACTICE 136, 146 (1998). 2 See Puja Roy, Sanctioned Violence: Development and the Persecution of Women as Witehes in South Bihar, 8 DEVELOPMENT IN PRACTICE 136, 145 (1998). 12009,roots of illness, this will likely dampen the incidence of witchcraft related violence. Such education around health issues may have the added benefit of important secondary effects within tribal communities. Further, given the insularity and isolation of tribal communities, educative efforts can reach further than enforcement efforts by spurring indigenous change. E. Collecting Greater Information and Statistics on Witch-Hunting India has an obligation to gather statistical data in order to further understand the problem of witeh-hunting, CEDAW?’s General Comment No, 9 provides that “statistical information is absolutely necessary in order to understand the real situation of women in each of the State parties to the Convention.”2”" The general recommendation to CEDAW further provides that the census should be formulated such that “interested users can easily obtain information on the situation of women in the particular sector in which they are intereste: Aside from its obligations under international law, India greatly needs to collect this, information. As highlighted above, there is a serious paucity in the availability of statistics regarding the number of women subject to witeh-hunts, despite increasing news reports relaying accounts of witch-hunting. As the Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions has noted, there “is little systematic information available on the numbers of persons so accused, persecuted or killed, nor is there any detailed analysis of the dynamics and patters of such killings, or of how the killings can be prevented." Moreover, CEDAW has recommended that India study the underlying causes of witch-hunting.”** As a result, in order to UN. Committee on the Elimination of Discrimination Against Women, General Comment 9: Statistical Data “oncenring the Situation of Women, UN. Doc. A/44/38. Special Rapporteur ofthe Human Rights Council on Extrajudicial, Summary, or Arbitrary Executions, supra note 41, ate aa. 1N. Committee on the Elimination of Discrimination Against Women, Concluding comments ofthe Committee ‘on the Elimination of Discrimination Against Women: India, § 27, U.N. Doe. 44better understand witch-hunting, its prevalence, causes, and effects, the Indian government should gather statistical data about the scope of the practice. Vil. Conclusion ‘The state of Jharkhand is deviating from international law obligations requiring India to address and prevent the problem of witch-hunting, which has resulted in the death of hundreds of lates many international women, The continued perpetration of witch-craft related violence human rights that women are possessed of, including their the right to equality and non- fi imination, the right to life, the right to be free from cruel and inhuman treatment, the right to security, the right to adequate housing, the rights to access national tribunals, and the obligation to provide effective measures for relief. Intemational human rights laws mandate that this Court must take action to provide for effective judicial remedies for violations of these integral human rights, 45