Impunity presents a major challenge in India : Christof Heyns Report

06 May 2013, Imphal

(l-r) Irina ( Prof Heyns assistant), Prof Heyns, Justice Shishak on 28 March 2012 in Guwahati
Pic - Mithu Choudhury

IMPUNITY PRESENTS A MAJOR CHALLENGE IN INDIA: UN SPECIAL RAPPORTEUR ON EXTAJUDICIAL, SUMMARY OR ARBITRARY EXECUTIONS, CHRISTOF HEYNS RELEASES HIS REPORT ON MISSION TO INDIA IN 2012

On 26 April 2013, the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns released his final report on his official visit to India from 19 to 30 March 2012. The report presents his main findings and proposes recommendations to ensure better protection of the right to life in India. Civil Society Coalition on Human Rights in Manipur and the UN (CSCHR) had submitted a comprehensive memorandum on fake encounter killings in Manipur to the UN envoy when he met with civil society organisations, human rights defenders and victims' families in Guwahati on 28 March 2012.

In the memorandum, CSCHR stated, "The Act (AFSPA) created a culture of impunity and, in extreme cases, gave security forces a carte blanche to commit rape, torture and carry out custodial killings. Opposition to the AFSPA resonates widely in Manipuri society and is epitomised by the continuing over eleven-year fast undertaken by a young Manipuri woman, Irom Sharmila, who has vowed to continue her action until the Act is repealed… India must end the suspension of the non-derogable human rights, primarily the right to life. The Armed Forces Special Powers Act of 1958 should be immediately repealed as it is a brazen affront to the right to life, sanctions impunity and protects those perpetrating summary, arbitrary and extrajudicial execution by the law. Militarisation and the high incidence of extrajudicial executions in Manipur exist in the context of armed conflict.

The situation that has been long prevailing in Manipur must be recognised as an armed conflict and, as such, the civilian population should be provided the necessary rights to protection accorded to them under international humanitarian law. The right to justiciable remedy and compensation for victims and their next of kin should become an established right within the Indian legislative framework. India must ensure full redress support for families of victims of extrajudicial execution by establishing the right to compensation, including the right to restitution, reparation and rehabilitation, as understood under the international human rights standards, through appropriate legislative steps."

The Special Rapporteur said in his report that the level of extrajudicial executions in this country raises serious concern and impunity presents a major challenge in India. This includes deaths resulting from excessive use of force by security officers, and legislation that is permissive of such use of force and hampers accountability. Vulnerable persons, including women, are at particular risk of killing.

In the Special Rapporteur's view, "The situation regarding the use of force in India is exacerbated by what in effect though not in law could constitute emergency measures. In this regard, AFSPA, enacted in 1958, regulates instances of use of special powers by the Armed Forces in so-called "disturbed areas" of the country. In order for AFSPA to be applied in an area, the area must be defined disturbed or dangerous to the extent that the use of armed force is deemed necessary. AFSPA first found application in the north-eastern States of Manipur and Assam as a way to address the continued unrest in the area, and was also extended to other areas, including in Arunachal Pradesh, Meghalaya, Mizoram, Nagaland and Tripura. In 1990, the Jammu and Kashmir Armed Forces (Special Powers) Act, containing nearly identical provisions to those stipulated in AFSPA, was enacted in Jammu and Kashmir.

"AFSPA provides wide-ranging powers to the Indian armed forces in respect of using lethal force in various instances, and fails to provide safeguards in case of excessive use of such powers, which eventually leads to numerous accounts of violations committed in areas where AFSPA is applied. The Special Rapporteur wishes to draw attention to two main concerns to which he was constantly alerted. Firstly, concerns were raised regarding AFSPA provisions regulating the use of lethal force.

Section 4 of AFSPA provides: "Any commissioned officer, warrant officer, non-commissioned officer…may, in a disturbed area, (a) if he is of opinion that it is necessary to do so for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area..." Such provisions clearly violate the international standards on use of force, including lethal force, and the related principles of proportionality and necessity.

"Secondly, Section 6 of AFSPA and 7 of the Jammu and Kashmir AFSPA, grant protection to the officers acting under these Acts and stipulate that prosecution of members of the armed forces is prohibited unless sanction to prosecute is granted by the central Government. Sanction is rarely granted in practice. In this context, the Special Rapporteur was informed of an application submitted in India under the Right to Information (RTI) Act in November 2011, requesting information on the number of sanctions for prosecution granted from 1989 to 2011 in the State of Jammu and Kashmir. The response received from the authorities revealed that in none of the 44 applications brought was sanction not granted. In addition to AFSPA, the CPC also protects members of the armed forces from being prosecuted without prior sanction being granted, which will be examined in chapter V.

"The Special Rapporteur notes that the Supreme Court of India held that the declaration of a "disturbed area" under AFSPA must be "for a limited duration and there should be periodic review of the declaration before the expiry of six months". He found, however, that this procedure is not followed in practice, and AFSPA remains effective for prolonged periods without a review of the context in the respective area.

"The Special Rapporteur wishes to underline that several international bodies have called for the repeal or reform of AFSPA, including the former United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions. Furthermore, Indian authorities at various levels have also expressed their support for the repeal of AFSPA. In this context, the Indian Government set up a special committee in 2004, tasked with examining the provisions of AFSPA and advising the Government on whether to amend or repeal the Act. The special committee found that AFSPA should be repealed – that it was "quite inadequate in several particulars" and had "become a symbol of oppression, an object of hate and an instrument of discrimination". The need to repeal AFSPA was reiterated by the Second Administrative Reforms Commission in its fifth report, published in June 2007. Finally, the NHRC shared with the Special Rapporteur its views in support of AFSPA's repeal during a meeting held in New Delhi.

"The Supreme Court of India ruled, however, in 1997 that AFSPA did not violate the Constitution. The Special Rapporteur is unclear about how the Supreme Court reached such a conclusion. The Special Rapporteur, however, notes that in the same case the Supreme Court declared as binding the list of "Dos and Don'ts" elaborated by the Armed Forces, and containing a series of specifications on the manner of applying AFSPA in practice. Although the list contains more precise guidelines on the use of lethal force under AFSPA, the Special Rapporteur believes that they still fail to bring AFSPA in compliance with the international standards in this regard.

"In the Special Rapporteur's view, the powers granted under AFSPA are in reality broader than that allowable under a state of emergency as the right to life may effectively be suspended under the Act and the safeguards applicable in a state of emergency are absent. Moreover, the widespread deployment of the military creates an environment in which the exception becomes the rule, and the use of lethal force is seen as the primary response to conflict. This situation is also difficult to reconcile in the long term with India's insistence that it is not engaged in an internal armed conflict. The Special Rapporteur is therefore of the opinion that retaining a law such as AFSPA runs counter to the principles of democracy and human rights. Its repeal will bring domestic law more in line with international standards, and send a strong message that the Government is committed to respect the right to life of all people in the country."

Significantly, in the report, the UN envoy notes that some civil society representatives whom he met during the visit reported afterwards that they faced intimidation from the authorities for having cooperated with him. The Special Rapporteur calls on the Indian authorities to ensure that no intimidation or other type of reprisal takes place against any of the individuals or groups met.

Dr Laifungbam Debabrata Roy
Convenor
CIVIL SOCIETY COALITION ON human rights in Manipur AND THE UN