INDIA: ARBITRARY DETENTION OF YUNUS SHAH

The International League Against Arbitrary Detention urges the Government of India to take all the necessary measured to implement the United Nations Working Group on Arbitrary Detention Opinion No. 45/2024 concerning Yunus Shah, asking the Government of India to immediately and unconditionally release Yunus Shah and to accord him an enforceable right  to  compensation  and  other  reparations  in  accordance  with  international law.

Read the full WGAD Opinion concerning Yunus Shah (India): Opinion 45/2024.

DETAINED IN REPRISAL OF HIS DEMANDS TO SUPPORT HIS RELATIVE

Yunus Shah is an Indian national of 67 years old working in a cemetery in the town of Kakrala, Buduan District, in Uttar Pradesh. In the evening of 2 May 2022, one of Mr. Shah’s relatives was arrested by officers of the Alapur police station. They attempted to make him confess to a crime related to cattle theft, and in view of his repeated denial they subjected him to several acts of torture including beatings, electric shocks and sexual violence. The relative was released after a fee was paid by other members of Mr. Shah’s family to the police officers.

After considerable efforts, notably advocating through different media outlets, Mr. Shah issued a complaint against the officers who tortured his relative. However, after a few days the officers were reinstated and started targeting Mr. Shah’s family. Threats were made against them to withdraw the complaint and the demands for independent investigations, but Mr. Shah resisted. During a violent confrontation between officers of Alapur police station and citizens of the town of Kakrala on 9 December 2022, Mr. Shah and three members of his family were detained by officers from Uttar Pradesh Police without warrant or decision by a public authority. According to the source, they were subjected to torture in custody including beating with sticks and electric shocks. The legal basis for the arrest was that Mr. Shah had allegedly violated several sections of the Indian Penal Code related to rioting and violence against public figures. On 8 January 2023, due to the impending release of Mr. Shah and his relatives on bail, officers of the Alapur police station requested the Senior Superintended of Police of Buduan District to authorize their continued detention under the National Security Act. This demand was granted by the Buduan District magistrate on 11 January 2023. On 11 January 2024, the detention order against Mr. Shah under the National Security Act expired and he was conditionally released from detention. However, the charges against Mr. Shah were not dropped and the trial against him is still pending.

The Government of India was given the opportunity to respond to the allegations through regular communication procedure, but it did not.

ARRESTED WITHOUT A WARRANT AND HELD IN PRETRIAL DETENTION

At the time of his arrest on 9 December 2022, Mr. Shah was not presented with an arrest warrant or any relevant decision. The Working Group stated that in order for a deprivation of liberty to have a legal basis, it is not sufficient that there is a law that may authorize the arrest. As such, the Working Group considered that the arrest was carried in violation of articles 3 and 9 of the Universal Declaration of Human Rights and article 9(1) of the Covenant.

With regards to Mr. Shah’s pretrial detention from 10 December 2022 to 11 January 2024, and taking into consideration Mr. Shah’s age, the Working Group concluded that an individualized determination accounting of his personal circumstances was not made, and as such, that his detention lacked legal basis and was ordered in violation of article 9(3) of the Covenant. In addition, given how the other co-defendants, who were non-members of Mr. Shah’s family were granted bail and released in the days following their detention on 10 December 2022, the Working Group found that the differential treatment given to Mr Shah and his family is consistent with the source’s submission claiming that their detention was an act of reprisal, and thus lacked legal basis.

Therefore, considering all of the above, the Working Group found that Mr. Shah arrest and detention lacked a legal basis, rendering his deprivation of liberty arbitrary under category I.

HELD FOR A PROLONGED DETENTION WITHOUT RIGHT TO A FAIR TRIAL

According to the source, Mr. Shah and his family were accused of additional charges under the National Security Act, effectively circumventing the time limits set out in the Code of Criminal Procedure and allowing for a prolonged and indefinite detention. The Working Group found that the lack of trial over 12 months of detention resulting from the additional charges under the National Security Act raised due process concerns and was in violation of articles 9 and 10 of the Universal Declaration of Human Rights and articles 9 and 14 of the Covenant.

Therefore, considering the above, the Working Group concluded that the violations of Mr. Shah right to a fair trial were of such gravity as to give his detention an arbitrary character under category III.

DEPRIVED OF HIS LIBERTY FOR BEING A MEMBER OF A RELIGIOUS MINORITY

The source submitted that several members of the Muslim community have been subjected, under the pretext of cattle protection, to hate crimes and arbitrary detentions with the authorities’ support, including Mr Shah’s relative. In that light, the Working Group reminded UN experts’ concerns about an increasing pattern of incitement to discrimination, hostility and violence against Muslim religious minority in India. Thus, it accepted the source’s allegations that national security laws were applied in a way to target religious minorities. As such, the Working Group found that Mr. Shah was deprived of his liberty on discriminatory grounds, namely because of his status as a member of a religious minority, in violation of articles 2 and 7 of the Universal Declaration of Human Rights and article 26 of the Covenant.

Therefore, considering the above, the Working Group established that Mr. Shah’s deprivation of liberty was made on discriminatory grounds, and is thus arbitrary under category V.

CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTIONS

In  light  of  the  foregoing,  the  United  Nations  Working  Group  on  Arbitrary Detention considered that the detention of Yunus Shah was arbitrary and fell under categories I, III and V because his deprivation of liberty was in contravention of articles 2, 7, 9 and 10 of the Universal Declaration of Human Rights and articles 9, 14 and 26 of the International Covenant on Civil and Political Rights.  

The Working Group urged the Government of India to take all the necessary steps to remedy the situation of Mr. Shah without delay and bring it into conformity with the relevant international norms. In light of the circumstances, the appropriate remedy would be to unconditionally release Mr. Shah and accord him and enforceable right to compensation and other reparations, in accordance with international law.

The Working Group also requested that the Government establishes an independent investigation on the circumstances surrounding the arbitrary detention of Mr. Shah and that it takes all the appropriate measures against those responsible for the violation of his rights.

In addition, in light of the worrying trend of increasing violence against religious minorities in India, the Working Group referred the present case to the Special Rapporteur on freedom of religion or belief.