Mail News Service
Imphal, Mar 30: United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, concluded his official mission to India today. Prof. Heyns visited the North East region of India and held a consultation with civil society in Guwahati on 28th March 2012 at Hotel Brahmaputra Ashok.
Prof Heyns said he travelled to New Delhi,as well as to five States,namely: Gujarat;Kerala;Jammu and Kashmir,where I had meetings in the cities of Jammu and Srinagar;Assam;and West Bengal.
He thanked to the United Nations Resident Coordinator,Mr. Patrice Coeur-Bizot,and his team,for having facilitated the preparation and conduct of my mission.
He said, “There are complaints of use of excessive force by the police against unarmed demonstrators and protestors, with scant adherence to the principles of proportionality and necessity.
Significantly, problems concerning excessive and arbitrary use of force by the police are further aggravated by statutory immunities that restrict accountability. Section 197 of the Criminal Procedure Code requires prior sanction from the concerned government before cognizance can be taken of any offence by a public servant for criminal prosecution.
A practice of what is called ‘fake encounters’ has developed in parts of the country. Where this occurs,suspected criminals or those labelled as terrorists or insurgents, and in some cases people onwhose head there is a prize, are shot dead by the police, and a scene of a shootout is staged. Those killed are then portrayed as the aggressors who had first opened fire and the police escape legal sanction. According to the National Human Rights Commission (NHRC) 2 965 cases of ‘encounters’ have been reported between 1993 and 2010,though there is possibly under-reporting.
In a positive development, the Supreme Court and the NHRC have issued guidelines on the Armed Forces (Special Powers) Act and on encounters.
There have been a large number of cases recorded on deaths that have occurred in police as well as judicial custody, often in the context of torture. I have been assured by Government representatives that the process of passing the legislation on torture as proposed by the Select Committee of the Upper House is well under way,which will allow the ratification of the Convention Against Torture. Needless to say this proposed legislation must be compliant with CAT and must include the mandatory provisions of training of police,prison cadre and other forces as well as orientation of the judiciary.
The Armed Forces (Special Powers) Act (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,and this is done without the safeguards applicable to states of emergency.
AFSPA – continuously in force since 1958 (different states have their own versions as well) in the North East and since 1990 in Jammu and Kashmir – has become a symbol of excessive state power. I have heard extensive evidence of action taken under this law that resulted in innocent lives being lost,in Jammu and Kashmir and in Assam,where witnesses from neighbouring states also assembled.This law was described to me as ‘hated’ and a member of a state human rights commission called it ‘draconian’.
A law such as AFSPA has no role to play in a democracy and should be scrapped. The repeal of this law will not only bring domestic law more in line with international standards,but also send out a powerful message that instead of a military approach the government is committed to respect for the right to life of all people of the country.
The government-appointed Jeevan Reddy Committee and the Administrative Reform Commission have both called for its repeal; as have political leaders of states where the Act applies.The NHRC told me during our meeting that they are in favour of its repeal and that they have commented in their submission to the 2012 UPR that AFSPA often leads to the violation of human rights. It is therefore difficult to understand how the Supreme Court,which has been so progressive in other areas,also concerning the right to life, could have ruled in 1997 that AFSPA did not violate the Constitution- although they tried, seemingly with little success,to mitigate its impact by issuing guidelines on how it is to be implemented.
AFSPA clearly violates International Law. A number of UN treaty bodies have pronounced it to be in violation of International Law,namely HRC (1997),CEDAW (2007),CERD (2007) and CESCR (2008). My predecessor has also called for its repeal.”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 with a concomitant permissive approach in respect of the use of lethal force. This is also difficult to reconcile in the long run with India’s insistence that it is not engaged in armed conflict.
Accountability is circumvented by invoking AFSPA’s requirement of obtaining prior sanction from the Central government before any civil prosecutions can be initiated against armed forces personnel. The information received through Right to Information applications,shows that this immunity provision effectively blocks any prosecution of members of the armed forces. The Centre has for example never granted sanction for civil prosecution of a member of the armed forces in Jammu and Kashmir.
He said , “Without waiting for the Commission, steps should be taken as a matter of priority on 13 important issues. It includes repeal of AFSPA, Ratification of the following international instruments should take place without further delay: Convention Against Torture;OP-CAT; and the Convention on Enforced Disappearances. Place a moratorium on the death penalty in accordance with General Assembly resolution
Read more / Original news source: http://manipur-mail.com/un-rapporteur-recommends-repeal-of-afspa/
