A/HRC/WGAD/2024/45

GE.24-17648 (E) 091024 101024 Human Rights Council Working Group on Arbitrary Detention Opinions adopted by the Working Group on Arbitrary Detention at its 100th session, 26–30 August 2024 Opinion No. 45/2024 concerning Yunus Shah (India) 1. The Working Group on Arbitrary Detention was established in resolution 1991/42 of the Commission on Human Rights. In its resolution 1997/50, the Commission extended and clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the Commission. The Council most recently extended the mandate of the Working Group for a three-year period in its resolution 51/8. 2. In accordance with its methods of work,1 on 21 February 2024 the Working Group transmitted to the Government of India a communication concerning Yunus Shah. The Government has not replied to the communication. The State is a party to the International Covenant on Civil and Political Rights. 3. The Working Group regards deprivation of liberty as arbitrary in the following cases: (a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to him or her) (category I); (b) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the Covenant (category II); (c) When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III); (d) When asylum-seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV); (e) When the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability or any other status, that aims towards or can result in ignoring the equality of human beings (category V). 1 A/HRC/36/38. United Nations A/HRC/WGAD/2024/45 General Assembly Distr.: General 10 October 2024 Original: English A/HRC/WGAD/2024/45 2 GE.24-17648 1. Submissions (a) Communication from the source 4. Yunus Shah is a citizen of India. He works at a cemetery and lives in the town of Kakrala, Budaun District, in Uttar Pradesh. He was 67 years old at the time of his arrest. (i) Context 5. The source asserts that Mr. Shah’s detention is an act of reprisal for his having pursued a case against the police, based on allegations of the torture in custody of one of his relatives. 6. The source explains that, in the evening of 2 May 2022, one of Mr. Shah’s relatives left the family house on his motorbike to attend to personal errands and was stopped by the police approximately 2 km away. After questioning him about his movements, police officers attempted to force him to confess to a crime relating to cattle theft. Mr. Shah’s relative denied having anything to do with cattle theft. 7. The source reports that Mr. Shah’s relative was then detained by the police by force and taken to Alapur police station, where he was physically tortured by five or six male police officers. The source adds that the acts of torture included a brutal beating with sticks and fists, electric shocks and sexual violence. The detained individual continued to claim his innocence with regard to the crime of cattle theft. He then fell unconscious, following the acts of torture to which he had been subjected. 8. A police official from Alapur police station then called members of Mr. Shah’s family and asked them to come to the police station to collect their relative, quoting 5,000 Indian rupees (approximately US$ 60) as the fee for his release and for his not being arrested for some other crime. Mr. Shah’s family members went to Alapur police station and paid the above-mentioned amount, after which their relative was released by the authorities in an unconscious state. 9. The source notes that the police officers gave the family 1,000 Indian rupees (approximately US$ 12) for the medical treatment that would be necessary. According to the source, Mr. Shah’s relative had sustained serious injuries, which required medical treatment in specialized hospitals, including in New Delhi. 10. Following the incident, Mr. Shah attempted to file a case against the police officers of Alapur police station. On 3 June 2022, following significant efforts undertaken by Mr. Shah, which included advocacy in the media, first information report No. 198/2022 was registered at Alapur police station. Five police officers were suspended for their alleged involvement in the torture in custody. However, within a few days, they were reinstated, and the same police officers reportedly began targeting Mr. Shah and his family. 11. On 3 August 2022, members of Mr. Shah’s family made a written request to all concerned senior police and administration officials for the case to be impartially investigated rather than being handled by the same police officers from Alapur police station and their superiors. 12. The source submits that, despite this request, following the registration of the case against the police officers, Mr. Shah and his family were repeatedly subjected to threats and requests to withdraw their complaint, which would result in the automatic closure of the case. 13. It is reported that Mr. Shah resisted pressure to withdraw the complaint and continued to demand an independent investigation. The source affirms that, given the reinstatement of the suspended police officers, the pressure exerted on Mr. Shah was significant. The source notes that the police falsely claimed to the local media that the complaint had been withdrawn, which Mr. Shah later had to refute. Moreover, the police delayed the investigation and the court proceedings. (ii) Arrest and detention 14. The source submits that, on 9 December 2022, a confrontation occurred between police officers from Alapur police station and some individuals in the town of Kakrala. A/HRC/WGAD/2024/45 GE.24-17648 3 Contrary to the allegations set out in first information report No. 487/2022, Mr. Shah and his family were at home at the time. 15. Between 7 p.m. and 8 p.m. on 9 December 2022, 10 to 15 male police officers entered Mr. Shah’s house and demanded that the family withdraw the complaint of torture in custody set out in first information report No. 198/2022. Upon the family’s refusal to withdraw the complaint, the police assaulted those present, including by committing acts of sexual harassment against female members of the family. 16. It is reported that Mr. Shah and three members of his family were then detained by officers from Uttar Pradesh Police. These officers did not show a warrant or other decision by a public authority. 17. According to the source, Mr. Shah and three of his relatives were taken to Alapur police station by force and subjected to torture in custody. They were beaten with sticks and punched all over their bodies. One of them had electric shocks administered to his ears and head and, following a deterioration in his condition, was taken to Budaun District Hospital. Mr. Shah suffered a fractured finger, and a member of his family suffered a fractured leg. As they were being tortured, the police officers repeatedly asked them to drop the case. 18. At 1.45 a.m. on 10 December 2022, the authorities registered first information report No. 487/2022 and arrested Mr. Shah, members of his family and 24 other individuals who had allegedly been involved in the confrontation on 9 December 2022. 19. In first information report No. 487/2022, it is reportedly alleged that Mr. Shah and members of his family were involved in a violent confrontation between officers from Alapur police station and individuals in the town of Kakrala. It is stated that, on 9 December 2022, Mr. Shah was stopped by police officers during a routine patrol and that he left after a brief argument with the officers. Nevertheless, according to first information report No. 487/2022, Mr. Shah later returned with a large group of individuals and started committing violent acts against the police, thus breaching law and order. It is mentioned in the police report that the crowd intended to kill police officers, attacking them with stones, bricks and sticks. As a result, items of police and private property were allegedly destroyed, and several police officers were injured. 20. The legal basis for the arrest was that Mr. Shah and others had allegedly violated the following sections of the Indian Penal Code: section 147 (Rioting), section 149 (Every member of unlawful assembly guilty of offence committed in prosecution of common object), section 332 (Voluntarily causing hurt to deter public servant from his duty), section 353 (Assault or criminal force to deter public servant from discharge of his duty), section 336 (Act endangering life or personal safety of others), section 307 (Attempt to murder), section 186 (Obstructing public servant in discharge of public functions), section 427 (Mischief) and section 120-B (Criminal conspiracy). It was also alleged that Mr. Shah and others had violated section 7 of the Criminal Law Amendment Act 1932 (Molesting a person to prejudice of employment or business) and sections 2 and 3 of the Prevention of Damage to Public Property Act (Definitions and Mischief causing damage to public property, respectively). 21. On 10 December 2022, the District and Sessions Court magistrate ordered that Mr. Shah and his co-defendants be remanded in custody in Budaun district prison. He was held separately from his family members. The source notes that the 24 co-defendants of Mr. Shah who were not members of his family were granted bail and were released in the following days. 22. It is reported that, at the same time, police officers continued to pressure the rest of the family, the family house was cordoned off, and family members were evicted. On 12 December 2022, a lawyer applied to the Budaun District and Sessions Court magistrate for permission for one member of the family who was being held in custody to undergo urgent medical treatment, which was not granted. 23. On 5 January 2023, Mr. Shah and three of his detained family members filed a bail application with the Budaun District and Sessions Court, which was denied on 24 January 2023. A/HRC/WGAD/2024/45 4 GE.24-17648 24. The source claims that, on 8 January 2023, following this bail application, the officers in charge of Alapur police station wrote to the Senior Superintendent of Police of Budaun District and mentioned Mr. Shah’s bail application. Reportedly, faced with the high probability of Mr. Shah’s release, the officers requested the Senior Superintendent of Police to authorize the continued detention of Mr. Shah and members of his family under the National Security Act. 25. On the same day, the competent police circle officer reportedly submitted a letter to a superintendent of police of Budaun District, advocating for detention under the National Security Act in the case. On 9 January 2023, the superintendent of police submitted a similar letter to the Senior Superintendent of Police of Budaun District. 26. On 10 January 2023, the Senior Superintendent of Police of Budaun District submitted an application to the Budaun District magistrate for the detention of Mr. Shah under the National Security Act. On 11 January 2023, the Budaun District magistrate ordered Mr. Shah’s detention under the Act. Similar proceedings under the Act were also initiated, and detentions undertaken, in respect of two of Mr. Shah’s family members. 27. The source affirms that, on 16 February 2023, the Secretary for Home Affairs in Uttar Pradesh authorized the detention of Mr. Shah and two members of his family, based on section 3 (3) of the National Security Act, for an initial period of three months, beginning on 11 January 2023. 28. Reportedly, on 28 March 2023, the Secretary for Home Affairs in Uttar Pradesh, acting under section 3 (3) of the National Security Act, extended the period of detention to six months. The source asserts that, on 3 July 2023, following authorization by the Deputy Secretary of Home Affairs in Uttar Pradesh, the period of detention was further extended, to nine months. 29. The source notes that some other members of Mr. Shah’s family, including a minor, were later arrested in the same case despite not having been named in first information report No. 487/2022. Some of them were allegedly tortured in detention and later released on bail. 30. On 20 September 2023, Mr. Shah and the two members of his family with whom he was detained were granted bail by Allahabad High Court (criminal miscellaneous bail application No. 37422 of 2023). However, they remained in detention under the National Security Act, their detention thereunder having been extended again on 29 September 2023, following authorization by the Deputy Secretary of Home Affairs in Uttar Pradesh. 31. The source submits that, on 11 January 2024, Mr. Shah was released from detention on bail, after the detention order against him under the National Security Act had expired without having been renewed. Before his conditional release, several court hearings had been held as part of a pretrial process. 32. It is reported that the charges against Mr. Shah have not been dropped and that the trial against him is pending. Currently, Mr. Shah is being assisted by a lawyer and has been able to obtain confidential meetings with his legal counsel. 33. However, the source notes that a detention order under the National Security Act can be challenged only before a high court and that, in the present case, the competent court, Allahabad High Court, is located over 500 km from Budaun District. Should Mr. Shah be detained again under the National Security Act, his modest financial means would not cover the costs of legal representation; moreover, the excessive distance would prevent his pro bono lawyers from providing him with immediate support. (iii) Legal analysis 34. The source argues that Mr. Shah’s detention is arbitrary and falls under categories I, III and V of the Working Group. It reiterates that Mr. Shah and his family have been targeted by the police authorities for insistently following up on the alleged torture in custody of their relative. It is argued that the authorities used an incident between the police and members of the public on 9 December 2022 as a pretext to detain most of the family. The source asserts that the detention order under the National Security Act indicates that preventive detention was ordered to ensure Mr. Shah’s continued custody in the event that bail was granted by the A/HRC/WGAD/2024/45 GE.24-17648 5 Budaun District and Sessions Court. Furthermore, other members of the family continued to be targeted by the police and detained. 35. In relation to category I, the source specifies that there is no legal basis for Mr. Shah’s detention. According to the source, he was detained under the National Security Act because, on 8 January 2023, the officers in charge of Alapur police station wrote to the Senior Superintendent of Police of Budaun District and mentioned Mr. Shah’s bail application and the high probability of him being released on bail. These officers requested the Senior Superintendent of Police to authorize the detention of Mr. Shah under the National Security Act. 36. The source argues that the National Security Act is used by the authorities as a tool for administrative detention, to keep individuals detained without trial. There is no legal mechanism to challenge detention under the National Security Act. 37. The source submits that the National Security Act is used by the authorities to deprive individuals of their constitutional and statutory rights. It argues that the National Security Act violates nearly all due process rights, most notably the right to the presumption of innocence. Reportedly, the National Security Act can be invoked against those who imperil the defence of the State, the relation of the State with foreign powers, the security of the State, public order, and the maintenance of essential supplies and services. The National Security Act reportedly permits the extrajudicial detention of individuals if the authorities approve. 38. It is argued that, for serious offences, suspects can be detained under several sections of the Indian Penal Code and that the National Security Act allows the authorities to keep them in custody without charging them, bypassing the guarantees enshrined in the Code of Criminal Procedure and avoiding judicial scrutiny. 39. In relation to category III, the source affirms that the National Security Act was applied against Mr. Shah as an act of reprisal for his having legitimately pursued the case of the alleged torture in custody of one of his relatives under first information report No. 198/2022. 40. The source recalls that Mr. Shah was 67 years old at the time of his arrest. It is affirmed that his detention amounted to torture and ill-treatment. 41. The source reiterates that Mr. Shah was charged under the National Security Act so that he could be detained without trial or the possibility of legally challenging his detention and to obstruct judicial proceedings. The source claims that, in addition to being an act of reprisal against Mr. Shah for his having sought justice for a relative who had allegedly been a victim of torture in custody, his detention was aimed at weakening the determination of the family to pursue the case. 42. The source argues that the lack of a trial, owing to the nature of Mr. Shah’s detention under the National Security Act, was a violation of articles 9 and 10 of the Universal Declaration of Human Rights and of articles 9 and 14 of the Covenant, falling under category III. 43. In relation to category V, the source reiterates that Mr. Shah’s detention took place after one of his family members had been subjected to torture in police custody and that the individual in question had been forced to confess to the crime of cattle theft, which he denied having committed. The source notes that, in recent years, several members of the Muslim community have been subjected to various hate crimes, often resulting in death, assault and arbitrary detention. These crimes against members of the Muslim community are reportedly often committed by vigilante groups under the pretext of protecting cows, with the authorities’ support. According to the source, the police and other authorities in several states of India have targeted members of the Muslim community. The source submits that the initial detention and torture in custody of a member of Mr. Shah’s family occurred because of his religious identity. It adds that members of the family were later detained for having resorted to legal mechanisms to demand justice for their relative. A/HRC/WGAD/2024/45 6 GE.24-17648 (b) Response from the Government 44. On 21 February 2024, the Working Group transmitted the allegations from the source to the Government under its regular communications procedure. The Working Group requested the Government to provide, by 22 April 2024, detailed information about the situation of Mr. Shah and to clarify the legal provisions justifying his detention, as well as its compatibility with the obligations of India under international human rights law, in particular concerning the treaties ratified by the State. Moreover, the Working Group called upon the Government to ensure his physical and mental integrity. 45. The Working Group regrets that it did not receive a response from the Government to that communication. 2. Discussion 46. In the absence of a response from the Government, the Working Group has decided to render the present opinion, in conformity with paragraph 15 of its methods of work. As a preliminary matter, the Working Group observes that the release of Mr. Shah does not prevent the Working Group from adopting an opinion, as no provision in its methods of work precludes consideration of a case in such circumstances. Indeed, the Working Group considers it necessary to render an opinion, given that the allegations relating to his deprivation of liberty are serious and thus warrant further attention.2 47. In determining whether the detention of Mr. Shah is arbitrary, the Working Group has in its jurisprudence established the ways in which it deals with evidentiary issues. If the source has established a prima facie case for breach of international law constituting arbitrary detention, the burden of proof should be understood to rest upon the Government if it wishes to refute the allegations.3 In the present case, the Government has chosen not to challenge the prima facie credible allegations made by the source. (a) Category I 48. The Working Group will first consider whether Mr. Shah’s detention is arbitrary under category I. The source submits that there is no legal basis for the detention of Mr. Shah. 49. The source submits that, on 9 December 2022, Mr. Shah was arrested at his home and detained by the Uttar Pradesh Police without being shown a warrant or other decision by a public authority. Pursuant to article 9 (1) of the Covenant, no one may be deprived of his or her liberty except on such grounds and in accordance with such procedure as are established by law. The Working Group has previously 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. The authorities must invoke that legal basis and apply it to the circumstances of the case.4 This is typically done through an arrest warrant or arrest order (or equivalent document).5 In the present case, noting the source’s submissions that the arresting officers did not present an arrest warrant at the time of arrest,6 the Working Group considers that the arrest was carried out in violation of articles 3 and 9 of the Universal Declaration of Human Rights7 and article 9 (1) of the Covenant.8 50. The day after the arrest, the authorities stated that Mr. Shah would be charged with a number of serious breaches of the Indian Penal Code. Allegedly, Mr. Shah had committed grave infringements in the context of a violent confrontation between officers from Alapur police station and individuals in the town of Kakrala. However, contrary to the authorities’ 2 Opinions No. 50/2017, para. 53 (c); and No. 55/2018, para. 59. 3 A/HRC/19/57, para. 68. 4 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46. 5 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. In cases of arrests made in flagrante delicto, the opportunity to obtain a warrant will typically not be available. 6 Opinions No. 45/2019, para. 51; No. 71/2019, para. 70; and No. 57/2021, para. 52. 7 For example, opinions No. 3/2018, para. 43; No. 26/2018, para. 54; No. 82/2018, para. 29; No. 37/2020, para. 52; and No. 57/2021, para. 52. 8 For example, opinion No. 57/2021, para. 52. A/HRC/WGAD/2024/45 GE.24-17648 7 allegations, Mr. Shah and his family claimed to have been at home at the time. The source recalls that Mr. Shah was 67 years old at the time of his arrest. 51. The source alleges that Mr. Shah and his family were targeted by the police authorities for insistently following up on the case of the alleged torture in custody of their relative. It argues that the authorities used the incident that occurred on 9 December 2022 between the police and members of the public as a pretext to detain members of Mr. Shah’s family. The source asserts that the detention order under the National Security Act indicates that this preventive detention was ordered to ensure Mr. Shah’s continued custody in the event that bail was granted by the Budaun District and Sessions Court. Furthermore, other members of the family continued to be targeted by the police and were also detained. 52. The Working Group finds credible the source’s allegations that Mr. Shah’s detention was without legal basis and was an act of reprisal, taking into consideration the circumstances surrounding his arrest and detention, including the following: (a) The police officers reportedly requested Mr. Shah, before his arrest, to withdraw the case concerning his relative; (b) During the arrest and detention, police officers reportedly perpetrated acts of violence, torture and sexual harassment against Mr. Shah and members of his family and pressured them to drop the case concerning their relative; (c) The authorities allegedly filed criminal cases against other relatives of Mr. Shah, and a family member who was a minor was later arrested despite not having been part of the criminal case; (d) Additional charges were laid against Mr. Shah under the National Security Act for the same conduct that he and members of his family denied on the basis of having an alibi; (e) The source notes that the 24 co-defendants of Mr. Shah who were not members of his family were reportedly granted bail and released in the days after judicial detention was ordered on 10 December 2022 in respect of Mr. Shah and his co-defendants. He was held separately from his family members. At the time, the police continued to pressure the rest of the family, the family house was cordoned off, and family members were evicted. 53. Moreover, the source reports that, on 8 January 2023, given the high probability of Mr. Shah being released on bail, the officers in charge of Alapur police station wrote to the Senior Superintendent of Police of Budaun District and requested him to authorize Mr. Shah’s continued detention under the National Security Act. According to the source, the National Security Act can be invoked against those who imperil the defence of the State, the relation of the State with foreign powers, the security of the State, public order, and the maintenance of essential supplies and services. 54. The source reiterates that Mr. Shah was charged under the National Security Act in order that he could be detained without trial or the possibility of legally challenging his detention and to obstruct judicial proceedings. The source claims that, in addition to being an act of reprisal against Mr. Shah for his having sought justice for a relative who was an alleged victim of torture in custody, his prosecution under the National Security Act was aimed at weakening the determination of the family to pursue the case. 55. Turning to Mr. Shah’s pretrial detention from 10 December 2022 to 11 January 2024, the Working Group notes that, according to article 9 (3) of the Covenant, “it shall not be the general rule that persons awaiting trial shall be detained in custody”. The Working Group recalls the view of the Human Rights Committee, as well as its own recurrent findings, that pretrial detention must be the exception and not the rule, should be ordered for as short a time as possible9 and must be based on an individualized determination that it is reasonable and necessary, taking into account all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime. Courts must examine whether 9 For example, opinions No. 57/2014, para. 26; No. 8/2020, para. 54; No. 5/2021, para. 43; No. 6/2021, para. 50; and No. 57/2021, para. 56. See also Human Rights Committee, general comment No. 35 (2014), para. 38; and A/HRC/19/57, paras. 48–58. A/HRC/WGAD/2024/45 8 GE.24-17648 alternatives to pretrial detention, such as bail, electronic bracelets or other conditions, would render detention unnecessary in the case in question.10 56. In the present case, considering Mr. Shah’s age, the Working Group concludes that an individualized determination taking into account his circumstances was not made and that, as a result, his detention lacked a legal basis and was ordered in violation of article 9 (3) of the Covenant. The Working Group notes that, while it is unclear why the 24 co-defendants of Mr. Shah who were not members of his family were reportedly granted bail and released in the days after judicial detention was ordered on 10 December 2022, the differential treatment of Mr. Shah and the members of his family is prima facie consistent with the source’s submissions that their detention was an act of reprisal. These elements strengthen the Working Group’s conclusion that Mr. Shah’s arrest was carried out in reprisal and thus lacked a legal basis. 57. In the light of the above, the Working Group finds that the Government failed to establish a legal basis for Mr. Shah’s detention. His detention was therefore arbitrary under category I. (b) Category III 58. The Working Group will now examine whether Mr. Shah’s detention is arbitrary under category III. The source argues that the lack of a trial, due to the nature of Mr. Shah’s preventive detention under the National Security Act, is a violation of articles 9 and 10 of the Universal Declaration of Human Rights and of articles 9 and 14 of the Covenant, falling under category III. The source submits that the National Security Act allows the authorities keep suspects in custody without charging them, bypassing the guarantees enshrined in the Code of Criminal Procedure and avoiding judicial scrutiny. 59. The Working Group recalls that, as the National Security Act allows for preventive detention for up to 12 months (if authorities are satisfied that the individual is a threat to national security or law and order), United Nations experts have previously highlighted that it may be misused either to extend preventive detention without charge or trial (for up to 12 months without trial), raising potential due process and fair trial rights violations. The experts noted the vagueness of the term “public order” and that the “public order” and national security grounds of the National Security Act could be overbroad, imprecise and vulnerable to abuse. The experts noted that the National Security Act could be invoked by law enforcement officials in cases of alleged religious conversion, cow slaughter and other religious acts and could therefore be particularly vulnerable to disproportionate enforcement against Muslim and other minorities.11 60. The Working Group observes that additional charges were laid against Mr. Shah under the National Security Act for the same conduct that he and members of his family denied. This in effect allowed detention for a prolonged and indefinite period, circumventing the time limits set out in the Code of Criminal Procedure, in violation of the right to liberty and freedom from arbitrary detention.12 In the view of the Working Group, this change in the charges against Mr. Shah, which subjected him to a disadvantage (detention for up to 12 months without trial, under the National Security Act), raises further due process concerns,13 in violation of articles 9 and 10 of the Universal Declaration of Human Rights and of articles 9 and 14 of the Covenant. 61. In view of the above, the Working Group concludes that the violations of Mr. Shah’s right to a fair trial are of such gravity as to give his detention an arbitrary character under category III. 10 A/HRC/19/57, paras. 48–58. 11 See communication IND 6/2023. All communications mentioned in the present document are available from https://spcommreports.ohchr.org/Tmsearch/TMDocuments. 12 Opinion No. 37/2018, para. 32. 13 Opinions No. 49/2014, para. 20; and No. 39/2015, para. 25. A/HRC/WGAD/2024/45 GE.24-17648 9 (c) Category V 62. Concerning category V, the source reiterates that the detention of Mr. Shah took place after one of his relatives had been subjected to torture in police custody and that the individual in question had been forced to confess to the crime of cattle theft, which he had denied having committed. The source notes that, in recent years, several members of the Muslim community have been subjected to various hate crimes, often resulting in death, assault or arbitrary detention. These crimes against members of the Muslim community are reportedly often committed by vigilante groups under the pretext of protecting cows, with the authorities’ support. 63. In the context of these allegations, the Working Group recalls that United Nations experts have expressed concerns about an increasing pattern of incitement to discrimination, hostility and violence against the Muslim religious minority in India.14 This concern has been expressed by the Human Rights Committee, which has noted reports of discrimination and high levels of violence against minority groups, including Muslims, Christians and Sikhs,15 including reports of violence and lynching by “cow vigilantes” against Muslims and Christians.16 In this regard, the Committee has recommended that the Government consider adopting national legislation to expressly outlaw violence and lynching by “cow vigilantes”.17 The Working Group recalls that the source states that the retaliatory detention of Mr. Shah was linked to the detention and torture of Mr. Shah’s relative, who had been accused of cattle theft. With regard to the National Security Act, the Committee has expressed concern about the application of national security and counter-terrorism laws to target religious minorities and about reports of public officials engaging in hate speech and inciting public violence against religious minorities.18 64. In these circumstances, and considering the source’s prima facie credible submissions, the Working Group finds that Mr. Shah was deprived of his liberty on discriminatory grounds, namely, 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. 19 His deprivation of liberty is therefore arbitrary, falling under category V.20 The Working Group refers the present case to the Special Rapporteur on freedom of religion or belief, the Special Rapporteur on minority issues and the Independent Expert on the enjoyment of all human rights by older persons. (d) Concluding remarks 65. In view of Mr. Shah’s age of 67 years at the time of his arrest, the Working Group recalls its deliberation No. 11, noting that States should refrain from holding individuals aged over 60 years in places of deprivation of liberty where the risk to their physical and mental integrity and life is heightened.21 66. The Working Group is alarmed by the reported targeting and detention of members of Mr. Shah’s family, including a minor, alongside allegations of serious acts of torture and mistreatment in police custody. It urges the Government to urgently investigate and remedy these allegations. 67. The Working Group would welcome the opportunity to work constructively with the Government to address arbitrary detention and the opportunity to conduct a country visit to India and looks forward to a positive response to its request, dated 22 February 2018, for a country visit. The Working Group recalls the Government’s obligation to ensure the protection of the religious minorities of India from abuses perpetrated by police officers and 14 See communication IND 7/2022. See also communications IND 5/2022 and IND 9/2022. 15 CCPR/C/IND/CO/4, para. 13. 16 Ibid., para. 45. 17 Ibid., para. 46 (a). 18 Ibid., para. 45. 19 See also the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, arts. 1–4. 20 Opinion No. 7/2023, para. 72. 21 A/HRC/45/16, annex II, para. 15. A/HRC/WGAD/2024/45 10 GE.24-17648 other authorities, often resulting in unfounded indictments and arbitrary detentions on discriminatory grounds. 3. Disposition 68. In the light of the foregoing, the Working Group renders the following opinion: The deprivation of liberty of Yunus Shah, being 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, is arbitrary and falls within categories I, III and V. 69. The Working Group requests the Government of India to take the steps necessary to remedy the situation of Mr. Shah without delay and bring it into conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. 70. The Working Group considers that, taking into account all the circumstances of the case, the appropriate remedy would be to unconditionally release Mr. Shah and accord him an enforceable right to compensation and other reparations, in accordance with international law. 71. The Working Group urges the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Shah and to take appropriate measures against those responsible for the violation of his rights. 72. In accordance with paragraph 33 (a) of its methods of work, the Working Group refers the present case to the Special Rapporteur on freedom of religion or belief, the Special Rapporteur on minority issues and the Independent Expert on the enjoyment of all human rights by older persons, for appropriate action. 73. The Working Group requests the Government to disseminate the present opinion through all available means and as widely as possible. 4. Follow-up procedure 74. In accordance with paragraph 20 of its methods of work, the Working Group requests the source and the Government to provide it with information on action taken in follow-up to the recommendations made in the present opinion, including: (a) Whether Mr. Shah has been released unconditionally and, if so, on what date; (b) Whether compensation or other reparations have been made to Mr. Shah; (c) Whether an investigation has been conducted into the violation of Mr. Shah’s rights and, if so, the outcome of the investigation; (d) Whether any legislative amendments or changes in practice have been made to harmonize the laws and practices of India with its international obligations in line with the present opinion; (e) Whether any other action has been taken to implement the present opinion. 75. The Government is invited to inform the Working Group of any difficulties it may have encountered in implementing the recommendations made in the present opinion and whether further technical assistance is required, for example through a visit by the Working Group. 76. The Working Group requests the source and the Government to provide the above-mentioned information within six months of the date of transmission of the present opinion. However, the Working Group reserves the right to take its own action in follow-up to the opinion if new concerns in relation to the case are brought to its attention. Such action would enable the Working Group to inform the Human Rights Council of progress made in implementing its recommendations, as well as of any failure to take action. A/HRC/WGAD/2024/45 GE.24-17648 11 77. The Working Group recalls that the Human Rights Council has encouraged all States to cooperate with the Working Group and has requested them to take account of its views and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have taken.22 [Adopted on 30 August 2024] 22 Human Rights Council resolution 51/8, paras. 6 and 9.