UPR and India Review: Flirting with Human Rights

Jiten Yumnam *

Peace Rally at Imphal observing the signing of AFSPA in 1958 on 11 September 2011 :: Pix - Amarjit Longjam

"A law such as AFSPA has no role to play in a democracy and should be scrapped,"
Christoff Heyns, UN Special Rapporteur Extra Judicial Executions.

"The Universal Periodic Review has great potential to promote and protect human rights in the darkest corners of the world."
– Ban Ki-moon, UN Secretary-General

Once again, India fails to live to its words to fulfill international human rights obligations. The country chooses to deceive the world and embark on a process of propagating rhetoric and contradictions. India, at the twenty first Human Rights Council session of United Nations at Geneva on 20 September 2012, refuses to accept 86 recommendations out of 169 human rights recommendations of UN member states in the second Universal Periodic Review (UPR) of India's human rights at UN in Geneva on 4 June last.

India refuses to review and repeal Armed Forces Special Powers Act, 1958 (AFSPA), to commit to protect human rights defenders, to ratify the Rome Statute on International Criminal Court and to invite the UN Special Rapporteur on Torture to visit India, among others. India has been reviewed for its human rights records since 2008 in UPR process established in March 2006, as part of global review.

India's second Universal Periodic Review of its human rights records sets interesting precedence. Countries like France, Switzerland and Slovakia made specific interventions for review and repeal of AFSPA for the first time in a political body, the UN Human Rights Council, where country representatives from all 193 member states were present in UPR review. This recommendation for AFSPA repeal is historic as it testifies that the voices for repeal of Armed Forces Special Powers Act, 1958 continues to resonates from all nooks and corners of the globe. The United Kingdom, Canada and Germany also raised human rights concerns with AFSPA in the first India review at UPR in 2008.

For long, India chooses to ignore recommendations from UN human rights bodies and other democratic voices for human rights. Longstanding calls to repeal the Armed Forces Special Powers Act, 1958, a controversial emergency legislation enacted in 1958 by the Indian Parliament to counter armed self determination movements in places like Manipur has long been ignored.

Several UN human rights bodies and many International Human Rights bodies documented series of violations, viz, torture, rape, extra judicial executions, enforced disappearances etc targetting the indigenous peoples of Manipur and across India's North East due to promulgation of AFSPA, 19581 and other special legislations.

Recently, Ms. Margaret Saggakya, UN Special Rapporteur on Human Rights Defenders in 2011 and also Mr. Christoff Heyns, UN Special Rapporteur on Arbitrary, Summary Killings and Extra Judicial Execution in early 2012, had recommended repeal of AFSPA, 1958. The UN Committee on the Elimination of All Forms of Racial Discrimination in the consideration of India's periodic reports too recommended the repeal of the AFSPA, 1958 in 20072. Similar recommendations on AFSPA had also come from the UN Committee on Economic, Social and Cultural Rights, UN Committee on Elimination of All Forms of Discrimination against Women and the Committee on the Rights of the Child.

India had a tough time when the UN Human Rights Committee in 1991 and 1997 pointed out that AFSPA is incompatible with international human rights laws, particularly the International Covenant on Civil and Political Rights (ICCPR). Under Section 3, the entire Manipur has been declared as a "disturbed area" since 1980 arbitrating norms for declaration States of Emergency.

Section 4 of the AFSPA is incompatible with Articles 6, 9 and 14 of ICCPR, as it also allows a non commissioned officer of the Indian army to fire and kill in mere suspicion. Article 6 of ICCPR provides for non derogable right to life. Section 6 of AFSPA, which outlines "No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act", is incompatible with article 2 (3) of the ICCPR to ensure an effective remedy in cases involving violations of human rights.

Mr. Christoff Heyns, the UN Special Rapporteur on Extrajudicial Executions observed that the AFSPA in effect allows the state to override rights in the disturbed areas in a much more intrusive way than would be the case under a state of emergency, since the right to life is in effect suspended without the safeguards applicable to states of emergency.

India's rejection of AFSPA review or repeal at UN Human Rights Council is unfortunate and constitutes a serious disregard and insensitivity to the longstanding demands for repeal of AFSPA by communities impacted by this act and also undermines the recommendations for AFSPA repeal by Justice Jeevan Reddy Commission and the Administrative Reforms Committee, instituted by the Government of India in 2004. India's refusal to review or repeal AFSPA at second UPR review also makes a mockery of the commitments and words of political heads of India, like Dr. Manmohan Singh, Prime Minister of India, who committed to amend the inhumane AFSPA into a humane act, in response to massive peoples protest in Manipur against the rape and murder of Ms. Thangjam Manorama Chanu by 17 Assam Rifles on 11 July 2004.

This contradictory position indicates that India did not consider the UPR process seriously and also conveys an alarming message that India believes in committing violation of right to life, extra judicial executions and other forms of serious violations with impunity in the pretext of protecting national security and combating terrorists in places like Manipur.

Refusing to commit to protect human rights defenders, to eliminate practice of torture and invite UN SR on Torture also undermines the very recommendations of UN human rights bodies and especially, recommendations of Ms. Margaret, UN SR on Human Rights Defenders to protect the rights of human rights defenders. India seems to convey a clear message that it will continue to arbitrary detain and torture human rights defenders and even arbitrary kills them and that it cares not for peoples voices. There's already tell tale signs that human Rights situation will further aggravate in Manipur and other conflict afflicted areas. Huge challenge lies ahead for human rights defenders and their organizations.

India's human rights claim is increasingly becoming a misnomer as human rights have been used to serve its dubious politics. Blatant lies and misinformation marks government's representations at the second UPR review at the UN Human Rights Council, downplaying abuses and violations by security forces and the role of AFSPA in facilitating these abuses.

It is also ludicrous how the government wrongly claimed that most complaints of army and paramilitary abuses and violations under AFSPA were proven false and also how several laws, statutes and human rights institutions promotes human rights. There are series of instances where the Indian judiciary and legal processes confirming security forces directly involving in extra judicial executions and how they continues to be condoned.

If one goes by the patterns and numbers of fake encounter killings in Manipur by security forces and the rate of prosecution and punishment of perpetrators for their heinous crimes, one can safely conclude that there is an alarming culture of impunity, where justice has been perennially denied, abetted by AFSPA.

Indeed, the former Special Rapporteur on Extra-Judicial Executions, Mr. Philip Alston, reported to the UN Human Rights Council in 2007 that despite the Government of Manipur ordering numerous inquiries into extra-judicial executions, none of them ultimately reached any meaningful conclusions. The laws, statutes and institutions only facilitate institutionalizing culture of impunity in Manipur and other places. UPR is not a process to cover up human rights violations and justify oppressive laws.

The question is how long will the Government of India continue to condone rights violations? How long can India continue to cover burning flames to end injustices and disregard growing voices against AFSPA and serious infringement on human rights? Emergency legislations constitute an adversity to modern democracy as they arbitrate the fundamental precept of modern jurisprudence on which democracy rests and as recommended by several UN human rights bodies, the Government of India should repeal AFSPA and other extra legislations.

The reluctance of India to accept recommendations for AFSPA repeal is quite understandable as the act was imposed to subdue political movements in places like Manipur. And here lies substance of addressing the root cause of the armed conflict in Manipur. It's long held that military measures can never be solutions to any political conflicts.

And indeed, the UN Human Rights Committee monitoring ICCPR in 1997 in the consideration of India's third periodic report recommended India to adopt a political approach in resolving conflict rather than insisting on Military. Democracy works not with misinformation, not by justifying rights infringement and annihilating peoples' futures, but with deeds from heeding to voices of sanity.