United Nations and the Armed Forces Special Powers Act

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By Babloo Loitongbam

One of the stated purposes of UN is to achieve international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. To translate this objective into action a Commission of Human Rights was set up in 1946. One the first task of the Commission was to draw up a Declaration and a Covenant on Human Rights. The Universal Declaration of Human Rights (UDHR) was adopted in 1948 and instead of one; two Covenants namely the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) are adopted in 1966. These three documents are also known as the Internal Bill of Rights.

TREATY BODIES

Over and above the two Covenants, the UN has also come out with several instruments dealing with different aspect of human rights such as the International Convention on Elimination of Racial Discrimination, the International Convention on Elimination of All Forms of Discrimination Against Women, the International Convention on Rights of the Child etc. Covenants and conventions are legally binding treaties and the States can become a party to it or stay away from of it. But once they become a party they commit themselves to submit periodic reports on how they are implementing the instrument within their jurisdiction. An independent Committee of experts examines the report and engages with the representative of the State party in a constructive dialogue. Thereafter, the committee issues its collective views on the positive aspects of the human rights situation in the state party, factors and difficulties impeding the application of the Covenant, principal subjects of concern and suggestions and recommendations.

India has signed most of the major human rights treaties of the UN and most of these committees have expressed serious concerns on AFSPA. We shall see some of them below.

International Covenant on Civil and Political Rights

India ratified the ICCPR in 1979. Its first report was examined in 1984; its second report in 1991 and the third in 1997; the fourth report is due since 31 December 2001. The Human Rights Committee, consisting of 18 experts from a wide range of legal systems, supervises implementation of the Covenant.

While examining the second report in 1991, several Committee members found AFSPA to contravene some of the most important rights guaranteed in the Covenant including

Article 2 – State obligation to give effect to rights recognized by the covenant,

Article 4 – State of Emergency and derogation form some right obligation,

Article 6 – Right to Life,

Article 9 – Right to Liberty and Security of Person, and

Article 14 – Right to Fair Trial  

The issue of AFSPA came up prominently again while examining the third report of India in July 1997. At the end of the session the Committee came out with the following written observations and recommendations:

18. The Committee remains concerned at the continuing reliance on special powers under legislation such as the Armed Forces (Special Powers) Act, the Public Safety Act and the National Security Act in areas declared to be disturbed and at serious human rights violations, in particular with respect to articles 6 (Right to Life), 7(Right Not to be Tortured), 9 (Right to Liberty and Security of Person) and 14 (Rights to Fair Trial) of the Covenant, committed by security and armed forces acting under these laws as well as by paramilitary and insurgent groups.

The Committee, noting that the examination of the constitutionality of the Armed Forces (Special Powers) Act, long pending before the Supreme Court is due to be heard in August 1997, hopes that its provisions will also be examined for their compatibility with the Covenant. In this respect, bearing in mind the provisions of articles 1, 19 and 25 of the Covenant the Committee endorses the views of the National Human Rights Commission that the problems in areas affected by terrorism and armed insurgency are essentially political in character and that the approach to resolving such problems must also, essentially, be political, and emphasizes that terrorism should be fought with means that are compatible with the Covenant.

The Supreme Court, while upholding the constitutional validity of AFSPA in its judgment of November 1997, completely ignored this request from the UN Human Rights Committee to examine the Covenant compatibility of AFSPA.

It may be noted that ICCPR allows states to derogate from certain provisions of the Covenant, but only if exceptional circumstances exist which justify the state`s inability to comply with its obligations. Only if the strict requirements for such derogations laid down in the Covenant are met, does the Covenant permit them. States wishing to derogate also have to follow a number of procedural steps. The requirements are laid down in Article 4 of the Covenant, paragraph 1 of which reads in part:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation…..

But no derogation is ever allowed from certain rights as specified in Article 4 (2) of the Covenant. The non-derogable rights includes Right to life (Article 6), Right not to be tortured (Article 7), Freedom from slavery (Article 8 (1 and 2), Right not to be imprisoned for failing to meet a contractual obligation (Article 11), Right not to be subjected to retroactive punishment (Article 15), Right to recognition of a person before the law (Article 16) and Right to freedom of thought, conscience and religion (Article 18).

The formalities required to derogate from other rights provided in the Covenant are specified in Article 4 paragraph 3:

The State wishing to derogate has to inform other State Parties to the Covenant through the Secretary-General of the UN of any derogations made and of the reasons why the state is doing so. The UN needs to be similarly informed of the termination of any derogation.

To date, India has not made any formal derogation from any right guaranteed in the Covenant. It is thus obliged to observe all its provisions fully. The Human Rights Committee therefore in it concluding observation stated as follow:

19. The Committee regrets that some parts of India have remained subject to declaration as disturbed areas over many years – for example the Armed Forces (Special Powers) Act has been applied throughout Manipur since 1980 and in some areas of that state for much longer – and that, in these areas, the State party is in effect using emergency powers without resorting to article 4, paragraph 3, of the Covenant. Therefore:
the Committee recommends that the application of these emergency powers be closely monitored so as to ensure its strict compliance with the provisions of the Covenant.

Committee on the Elimination of Discrimination against Women (January 2007)

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted by the General Assembly in 1979.  India ratified the convention in July 1993. The Committee on Elimination of Discrimination Against Women monitors the implementation of CEDAW. The Committee after examining India’s first report in January 2000 wrote in its principal areas of concern and recommendations that it is concerned that women are exposed to the risk of high levels of violence, rape, sexual harassment, humiliation and torture in areas where there are armed insurrections.

72. The Committee recommends a review of prevention of terrorism legislation and the Armed Forces Special Provisions Act, in consultation with the Human Rights Commission of India, the National Commission of Women and civil society, so that special powers given to the security forces do not prevent the investigation and prosecution of acts of violence against women in conflict areas and during detention and arrest. The Committee recommends that women be given an opportunity to make their contribution to peaceful conflict resolution.

73. The Committee recommends the introduction of gender sensitization and human rights programmes for the police, the security forces and medical professionals, in addition to programmes already undertaken.

The second and third periodic report of India was examined in 2007 and the Committee continued to express serious concerns in the following words:

8. The Committee is concerned that the State party has not taken adequate steps to implement the recommendations in regard to some concerns raised in the Committee’s previous concluding comments adopted in 2000. (…) The Committee is also concerned that it has not been provided with any information on the report of the committee established to review the Armed Forces Special Powers Act in response to its previous concluding comments.

9. The Committee reiterates the concerns and recommendations in the concluding comments adopted in 2000 and urges the State party to proceed without delay with their implementation. The Committee requests the State party to provide information on the steps being taken to abolish or reform the Armed Forces Special Powers Act and to ensure that investigation and prosecution of acts of violence against women by the military in disturbed areas and during detention or arrest is not impeded.

Committee on the Elimination of Racial Discrimination

The International Convention on Elimination of All Forms of Racial Discrimination (CERD) is one of the earliest human rights conventions to be proclaimed by the UN General Assembly on 20 November 1963. India took keen interest and ratifies the convention on 3 December 1968 and submitted its first report in 1970. CERD Committee monitors the implementation of CERD.

In the last review of fifteenth to nineteenth reports in February 2007, the CERD Committee had a copy the Union Home Ministry’s own unpublished report of the Committee to Review the Armed Forces Special Powers Act, 2005. On perusal of this report CERD Committee was convinced that AFSPA is an instrument of discrimination against the ethnically distinct people of the north-eastern States. The CERD concluding states as follows:

12. The Committee notes with concern that the State party has not implemented the recommendations of the Committee to Review the Armed Forces (Special Powers) Act (1958) to repeal the Act, under which members of the armed forces may not be prosecuted unless such prosecution is authorized by the Central Government and have wide powers to search and arrest suspects without a warrant or to use force against persons or property in Manipur and other north-eastern States which are inhabited by tribal peoples. (arts. 2 (1) (c), 5 (b), (d) and 6)

The Committee urges the State party to repeal the Armed Forces (Special Powers) Act and to replace it “by a more humane Act,” in accordance with the recommendations contained in the 2005 report of the above Review Committee set up by the Ministry of Home Affairs. It also requests the State party to release the report.

The Government of India has not repealed AFSPA till date and the CERD Committee is actively perusing the matter with the Government.

Committee on Economic, Social and Cultural Rights

India ratified the International Covenant on Economic Social and Cultural Rights in 1979 along with ICCPR. The first report was discussed in 1990 and the join second to fifth report was examined only in 2008. In the last examination the Committee also lends its voice by stating “the State party considers repealing the Armed Forces Special Powers Act” in its recommendation (paragraph no 50).

THEMATIC SPECIAL PROCEDURES

Thematic Special Procedures are independent experts mandated by the Human Rights Council to report and advice the Council on a specific theme of human rights. The Special Procedures has become a vital part of the Council and more thematic mandates are created covering all aspects of human rights – civil, political, economic, social and cultural rights. There are at least 36 thematic mandates in the UN Human Rights Council.  Special Procedures undertake country visits; act on individual cases and concerns of a broader, structural nature by sending communications to States in which they bring alleged violations to their attention.

On 14 September 2011 India has joined a group of 93 countries who have extended a standing invitation to all thematic special procedures. By extending a standing invitation States announce that they will always accept requests to visit from all special procedures. In the last three years (2011 – 2013) three Special Rapporteurs visited India and all of them have recommended the repeal of AFSPA.

Special Rapporteur on Human Rights Defender

Ms. Margaret Sekaggya, the UN Special Rapporteur on the situation of human rights defenders, made an official visit to India and submitted her report to the Council in 2012. The report stated that the Special Rapporteur was deeply disturbed by the large number of cases brought to her attention during the course of her visit by defenders who claimed to have been targeted by the police and security forces under counter-terrorism legislation such as (…)the Armed Forces (Special Powers) Act (AFSPA) (…). The Special Rapporteur was told that these laws are being arbitrarily applied, particularly, but not solely, in areas where internal conflict or severe civil unrest exist, to provide legal grounds for a number of human rights violations against defenders. (Para 29)

On the section on Defenders affected by security legislations and militarization she wrote that “At the time of the visit, Manipur was reportedly the state worst affected by militarization, with more than half a dozen human rights groups having been branded as terrorists due to their self-determination advocacy work. Since 2000, Irom Sharmila, who has been on a hunger strike to demand the repeal of the Armed Forces (Special Powers) Act, has been forcibly detained and force-fed in a hospital in Imphal. For 10 years, NHRC reportedly never visited Ms. Sharmila, despite repeated requests by defenders. The Special Rapporteur thanks Ms. Sharmila for her letter, read by her brother, during her visit to Guwahati.” (Para 83)

The report recommends inter alia that “the Armed Forces (Special Powers) Act (…) should be repealed. Other security legislations should be reviewed in the light of international human rights standards.” (Para 145)

Special Rapporteur on Summary, Arbitrary and Extra-Judicial Executions

The Special Rapporteur on Summary, Arbitrary and Extra-Judicial Executions, Christof Heyns, conducted his official mission to India in March 2012 and his report was presented in the 23rd session of the Human Rights Council in Geneva. The report highlights AFSPA in the context of fake encounter:

12. (…The police, the central armed police forces, and the armed forces have been accused of “fake encounters”. Complaints have been lodged, particularly against the Central Reserve Police Force, the Border Security Forces, and the armed forces acting under the Armed Forces (Special Powers) Act (AFSPA). The existence of this practice was recently acknowledged in the courts.

The report also contains a section on AFSPA, which states as follows:

26. 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.

27. 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.

The report recommends:

100. India should repeal, or at least radically amend, AFSPA and the Jammu and Kashmir AFSPA, with the aim of ensuring that the legislation regarding the use of force by the armed forces provides for the respect of the principles of proportionality and necessity in all instances, as stipulated under international human rights law. It should also remove all legal barriers for the criminal prosecution of members of the armed forces.

101. While waiting for the necessary amendment or repeal of AFSPA, it should be ensured that the status of a “disturbed area” under AFSPA is subject to regular review – for example, every six months – and a justified decision is made on its further extension.

Special Rapporteur on Violence Against Women

The Special Rapporteur on violence against women, its causes and consequences, Ms. Rashida Manjoo, visited India in April-May 2013. She will be presenting her report to the Council in June 2014. At the end of her mission, she enumerated the rights violated by AFSPA when seen from the perspective of violence against women. She stated that on the issue of conflict-related sexual violence, it is crucial to acknowledge that these violations are occurring at the hands of both state and non-state actors and when on to say:

The Armed Forces (Special Powers) Act and the Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) has mostly resulted in impunity for human rights violations broadly, according to information received. The law protects the armed forces from effective prosecution in non-military courts for human rights violations committed against civilian women among others, and it allows for the overriding of due process rights.  Furthermore, in testimonies received, it was clear that the interpretation and implementation of this act, is eroding fundamental rights and freedoms – including freedom of movement, association and peaceful assembly, safety and security, dignity and bodily integrity rights, for women, in Jammu & Kashmir and in the North-Eastern States. Unfortunately in the interests of State security, peaceful and legitimate protests often elicit a military response, which is resulting in both a culture of fear and of resistance within these societies.

UNIVERSAL PERIODIC REVIEW

The Council, which replaced the Commission in 2006, has come out with a novel peer review mechanism where in human rights records of all 193 the governments will be periodically reviewed. This is called the Universal Periodic Review (UPR) mechanism. The actual review itself takes place at Geneva in a session of the Working Group on UPR, which is composed of 47 member States of the Council. The review takes the form of a three and a half hour interactive dialogue between the State under review and the member and observer States of the Council. A few days after the interactive dialogue, the Working Group adopts the report of the proceedings. The final outcome document, containing the report of the working group and the position of the State under review on the recommendation put forward, is adopted at the following plenary session of the Human Rights Council, a few months after the interactive dialogue.

India’s human rights record was reviewed twice under UPR, first in April 2008 and second in May 2012. In the first cycle UK, Canada and Germany raised the issue of repeal of AFSPA. In the second cycle Slovakia, Switzerland, France and Spain made the following specific recommendations:

1. Repeal AFSPA or adopt the negotiated amendments to it that would address the accountability of security personnel, the regulation concerning detentions as well as victim’s right to appeal in accordance to international standards (Slovakia);

2. Review AFSPA to align it with its obligations under the International Covenant on Civil and Political Rights and other international standard (Switzerland); and

3. Carry out an annual review of the AFSPA aiming to gradually reduce its geographical scope (France).

4. Guarantee effective access to justice in cases of human rights violations committed by security forces personnel with regard to the use of torture (Spain).

5. Implement effective judiciary proceedings making possible the bringing to justice security forces personnel who have committed human rights violations (France)

However, the Government of India did not accept any of these recommendations on AFSPA. It continues to insist that AFSPA was upheld by the Supreme Court and “several check and balances are introduced with strict guidelines when dealing with terrorist and insurgents, and that violations were dealt with swiftly and transparently”.

CONCLUSION

Despite all the criticisms by almost all the Committees monitoring the major UN human rights treaties, all the special rapporteurs who have visited the country in the last three years, several governments in the UPR process, Government of India continue to ignore the call to repeal AFSPA. At this juncture we may end with a quote the speech of Ms. Navanethem Pillay, UN High Commissioner for Human Rights delivered during her maiden visit to India on 23 March 2009, where she did not minced word and spoke straight:

… India should repeal those dated and colonial-era laws that breach contemporary international human rights standards.  These range from laws which provide the security forces with excessive emergency powers, including the Armed Forces Special Powers Act, to laws that criminalize homosexuality.  Such legal vestiges of a bygone era are at odds with the vibrant dynamics and forward thrust of large sectors of the Indian polity.

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