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CHAPTER IV
HUMAN RIGHTS VIS-À-VIS SECURITY FORCES IN INDIA
Dalai lama
India, widely hailed as the world's largest democracy, has a vibrant press and an active civil
society, but also suffer from a series of low intensity conflicts and proxy wars conducted by
Pakistan and various radical Jehadi outfit through the instrumentality of terrorism, Islamic
terrorism, Communist terrorism, Sikh terrorism and Ethnic terrorism, are the badly dangers
nation faces today. Unfortunately, for a long time after independence, the security forces
have engaged in counter insurgency operations for more than fifty years in the North East
and for more than two decades in Jammu and Kashmir to aid and assist the State
Government authorities. In carrying out these tasks, the security forces has time and again,
come under criticism for human rights violations.1
Torture, extra-judicial killings and forced disappearances are a daily reality in India. The
armed forces, security and paramilitary forces use violence and often deadly measures to
intimidate and punish citizens for a range of actual or perceived transgressions, crimes and
beliefs. A critical issue is impunity: officials and members of the security services who
abuse their power are rarely if ever brought to justice for torture, arbitrary detention and
extra judicial killings in places like Jammu and Kashmir, the insurgency affected states in
the North East, and in areas where there is an extremist Maoist movement by group known
as Naxalites. Without any fear of prosecution or civil suit, Indian officials are relatively
free to commit human rights abuses, while victims are essentially unable to attain justice or
seek restitution. Whether it be military and paramilitary atrocities in Jammu and Kashmir,
government official sanction of communal violence in Gujarat, counter insurgency abuses
in the North east or Naxal areas, encounter killings or custodial violence by police
1 A.G Noorani and South Asia Documentation Center, Challenges to Civil Rights Gurantees in India,
South Asia Documentation Centre, Oxford , University Press, New Delhi, 2012, p.33.
143
throughout the country, the culture and legal structure of impunity has allowed the most
fundamental violations of human rights to go unchecked.2
India has signed and ratified a number of international standards and conventions,
including the International Covenant on Civil and Political Rights (1979) and the United
Nations Convention on the rights of the child (1989), signaling its commitment to
upholding the human rights of its citizens. India has also signed, but not yet ratified, the
United Nations Convention Against Torture (1984) and the United Nations International
Convention for the Protection of All Persons from Enforced Disappearances (2006). In
addition to these international standards, a number of provisions in the ordinary domestic
law seek to protect individuals from abuses by state officials. It is clear, therefore, that the
Indian State has a strong theoretical commitment to fundamental rights for all.
There remains, however, an unacceptable gulf between the theoretical commitment to
fundamental rights and the successful realization of these rights in practice. Despite its
strong democratic constitutional model, international obligations, criminal law protections
and theoretical commitments, security forces are violating the human rights of its citizens.
Since independence, successive Indian governments have introduced a range of security
and anti-terrorism laws to combat civil unrest and dissent. The Indian government in a
variety of circumstances, echoing the system of colonial governance under the British. For
example, the Armed Forces Special Powers ordinance was introduced by the British in
-introduced by Indian Government in
1958 as the Armed Forces Special Powers Act (AFSPA) to quash the movements for self-
determination emanating from the northeastern states. This draconian law remains in force
today in much of the Northeast and in Kashmir.3
-terrorism laws with their in-built protections of state
agents run contrary to the letter and spirit of the Indian Constitution. The Indian
Government has introduced a range of laws to combat civil unrest and to fight terrorism.
2 Raj Mohan Pal, Human Rights Issues and other Radical Essays, Aakar Books, Delhi, 2010, p.167.
3 J.S.Verma, The New Universe of Human Rights, Universal Law Publishing Co. Pvt. Ltd, Delhi,
2004, p.57.
144
Examples of these repressive anti-terrorism laws include: the Armed Forces Special Powers
Act (AFSPA) of 1958 and its extension to Kashmir AF (J & K) SPA in 1990; the Terrorist
and Disruptive Activities Act (TADA) of 1985; the Prevention of Terrorism Act (POTA)
of 2002 and the Unlawful Activities (Prevention) Amendment Act (UAPA) of 2004. These
successive laws have strengthened the power of the state over the individual and continue
to undermine the fundamental rights of Indian citizens. They give extra powers to the
police, army and security forces and often deviate from accepted norms of criminal justice.
Two hallmarks of anti-terrorist legislations are: the allowance for confessions obtained in
police custody and a presumption against attaining bail.
Despite the numerous domestic legal provisions prohibiting torture, extra-judicial killings
and forced disappearance, the actions of the police and military forces are often sanctioned
by law and are directly at odds with the legislation that seeks to protect the abuse of
detainees and civilians. The Armed Forces Special Powers Act of 1958 (AFSPA), for
example, gives military forces wide powers of arrest, the right to shoot to kill and the right
to occupy or destroy, property in counter-insurgency operations. State officials justify the
powers given to the military and security forces on the basis that the Act is only in force in
those areas where national security is at risk due to armed combatants and terrorists.
AFSPA and many other national security laws are anti-
tradition. The rule of law is steadily eroded when legal provisions such as those contained
in AFSPA, TADA, POTA and UAPA are enacted to opt out of fundamental right
standards.4
Under the anti-terrorism and security laws and under ordinary criminal law, agents of the
state are provided with immunity from prosecution for arts carried out in the course of their
duties unless expressly sanctioned by the Central or State governments. This has led to an
unacceptable climate of impunity in which the police and the armed forces are shielded
from- prosecution for human rights atrocities.
In addition to the protections from prosecution provided by anti-terrorism and security
4 Criminal Law Journal, Vol.114,
April, 2008, p.96.
145
laws, the police and security forces are given legal immunity from acts of torture and extra-
judicial killings under provisions of the Code of Criminal Procedure. A member of the
armed forces cannot be prosecuted for acts carried out while on official duty without the
prior permission of the Government as provided by Section 45 and 132 of the Code of
Criminal Procedure. Section 197(2) of CrPc has been invoked to prevent the trial of
members of the armed forced alleged to be responsible for human rights abuses.
Human Rights reports from time to time have indicated also that a number of human rights
abuses have taken place despite extensive constitutional and statutory safeguards. Violation
of human rights by security forces has also been reported by many organisations. Since a
very large number of armed forces are deployed in low intensity conflict operations in
various parts of the country, it is imperative that all members of the armed forces be aware
of the various aspects of human rights so that they are respected at all times and also to
avoid allegations of violation of human rights while operating in low intensity conflict
operations.5
The significance of Human Rights for the Security Forces need not be over emphasized. As
a matter of fact, security forces occupy a vital position in the long chain of the state
apparatus for translating human rights into reality. After all, they are the personnel in action
charged with the responsibility of protecting and promoting human rights, both in times of
peace and war. To discharge their duty in a truly professional manner, security forces must
not only possess a sound knowledge of human rights law but also their drilling at training
centers and institutions so as to develop a human rights culture.
This chapter aims to provide on overview of the issues relating to human rights and
security forces in India. The chapter is organized into four parts:
1) Awareness of human rights amongst Security Forces in India.
2) Review of Repressive Laws in India and Human Rights Violations.
3) Human Rights and Security Forces in low intensity conflicts.
4) Role of NHRC against the violation of human rights by security forces.
5 Reena Laitonjam, South Asia Politics, Vol.6, 2007-2008, p.47.
146
4.1 Awareness of Human Rights Amongst the Security Forces
The Indian Security Forces are divided into three broad categories:
1) The Armed Forces of the Union- the Army, Navy and Air Force.
2) The Central Paramilitary Forces(CPMF), Central Reserve Police Force (CRPF),
Assam and Rastriya Rifles, Indo- Tibetan Border Police Force(ITBPF), and the
National Security Guards, Defence Security Corps, the Railway Protection Force,
the Central Industrial Security Force, the Special Frontier Force and the Indian
Coast Guard.
3) The Indian Police Force- Police Forces of States and Union Territories.
4.1.1 Awareness of Human Rights within the Armed Forces of the Union
Primarily being defence forces-meant to be deployed against external aggression,
humanitarian laws are disseminated to the armed forces in their military institutions and
training centres; the informal dissemination is carried out in the homes, schools and
colleges- in fact everywhere much before the defence personnel start donning uniforms.
It is interesting to know that the Indian Army, in 1993 March, on its own and even before
the enactment of the Protection of Human Rights Act, 1993 or even the establishment of
the National Human Rights Commission, had established a Human Rights Cell at Army
Headquarters. This Cell was created without any separate resources but within the
authorized establishment of the Indian army. Till today this Cell is fully functional with a
full-time director of the rank of Colonel, assisted by a Lieutenant Colonel and other staff.
This cell functions under the command of a major general who heads the Additional
Directorate of Discipline and Vigilance located at Sean Haven at the Defence
Headquarters, New Delhi. This cell is in close liaison with the National Human Rights
Commission which is presently located close-by at Faridkot House.6
The Indian army has designated officers of the rank of Colonel at its various operational
headquarters, from Army Headquarters down to Divisional Headquarters, to monitor and
6 .D.U. Law
Journal, Vol. XI, Part-II, 2006, p.131.
147
follow up reports of human rights violations by its personnel. These cells are in close
contact with human rights agencies, NGOs, ministries and international agencies with a
view to minimize human rights violations. They work swiftly to obtain information and
carry out verification on all human rights issues mostly pertaining to conduct of search
operations or illegal arrest.
As an educated segment of society, Indian Army soldiers are conscious of their own
Human Rights and those of the public. Indian Army takes pride in having Human Rights
originated right from Army Headquarters level down to formations. Indian Army also has
institutionalised training both for officers and men in various courses run by the Army at a
very basic level on Human Rights to create awareness amongst all ranks. Training
establishments like College of Combat, Infantry School, Defence Service Staff College,
and Institute of Military Law have Human rights as a subject, as a small part of their
curriculum. The focus of their training on the subject, at the junior level includes
developing of their reflexes and thus to react to different situations in keeping with the
Human Rights. The Chief of the Army Staff had in 1993 issued the "Ten Commandments"7
for strict observance for the forces engaged in the counter-insurgency operations. In brief
these are:
No rape.
No molestation.
No inhuman torture.
Death preferable to military disgrace.
No meddling in civil administration, i.e., land disputes or quarrels.
Competence in platoon/company tactics with innovations.
Willingly carry out civic action.
Maintain good relationship with media use it as a force multiplier' and not as a
'force degrader'.
Respect human rights.
Only fear God, uphold the path of righteousness and enjoy serving the country.
7 d Forces, Criminal Law Journal, Vol.114,
April, 2008, p.107.
148
As a corollary to the Ten Commandments of the Chief of Army Staff, the Corps
Commander had further issued Ten Directives for strict compliance. These in brief are:
Display compassion and humanity towards local "populace.
Do not look down upon local customs and traditions.
There are no insurgents here only misguided countrymen.
Never molest women they are our sisters and mothers.
Do not harm children they are our heritage.
No reprisals under any circumstances.
Apprehendees to be treated with respect.
Honour democratic norms and rightly adhere to human rights.
Constantly seek contact with us.
Aggressiveness and spontaneous reaction is the key to success and survival.8
4.1.2 Sensitizing of Human Rights among the Border Security Force Personnel
The BSF came into force on Dec. 1, 1965. Today, it is one of the largest paramilitary forces
not only of India but also of the whole world with over 1,50,000 men and officers trained
not only in war time operations but also in internal security duties and border surveillance.
Newly trained personnel, before deployment, are imparted 15 days induction course for
proper training in Human Rights. It is sheer innovativeness, ground experience and
commitment to Human Rights that BSF in consultation with ICRC brought out a set of
rules to be acted upon during counter-insurgency operations. Those rules were
subsequently adopted as a handbook under the authority of the Director General, BSF,
whose violation could lead to punitive action against the erring troops.9
8 .D.U. Law
Journal, Vol. XI, Part-II, 2006, p.133. 9 Air Commodore Ranvir Kumar and Group Captain B.P Sharma, Human Rights and the Indian
Armed Forces, Sterling Publishers Pvt. Ltd, New Delhi, 1998, p.223.
149
Briefly, the operative portions of the instructions contained in the handbook are:
I. Points to be kept in mind during interrogation:
(a) Never adopt torture but follow the following principles:
(i) Verification
(ii) Identification
(iii) Motivation
(iv) Confirmation
(v) Tension but not torture
II. Points to be remembered while dealing with terrorists
(i) Distinguish between a terrorist and a common man.
(ii) Do not arrest an innocent person.
(iii) Warn before firing on the terrorists.
(iv) Do not indiscriminately use force on terrorists after their capture.
(v) Disarm the terrorists and hand them over to the higher authorities.
(vi) Give first aid to the injured terrorists.
(vii) Fire on terrorists after proper targeting.
(viii) Do not indiscriminately fire when the terrorists are hiding behind the public.
III. When firing is necessary
(i) Do not resort to indiscriminate firing.
(ii) When being fired upon, do not use indiscriminate firing but use target
oriented firing and lastly look after wounded civilians and terrorists.
IV. Precautions during cordon or search operations
(i) Do not indulge in unwanted destruction.
(ii) Do not misbehave with ladies and children.
(i) Do not steal.
The subject of Human Rights has been included in all the basic training courses of the
force. To keep its personnel updated with the latest developments in Human Rights, the
150
BSF keep on conducting seminars capsule courses and workshops on Human Rights.10
4.1.3 Human Rights amongst the Central Reserve Police Force Personnel
The Central Reserve Police Force (CRPF), Constituted under Central Reserve Police Act,
1949, is the premier Armed Force of the Union for internal security management. It is the
only Central Police Force which has a system of graded response from 'Lathi to Bullet.' It
also has a women wing. The present strength of the Force is about 135 battalions. Nearly
84% of the force is deployed in the disturbed areas of Jammu and Kashmir, North East and
Andhra Pradesh. It was the frontal force for dealing with terrorism in Punjab.
A multi-tier sensitisation of the Force personnel about Human Rights is done through the
following activities:
(a) Inclusion of Human Rights inputs in all basic, refresher and promotional courses at
various levels.
(b) Organisation of a three day capsule course on Human Rights for each force
personnel once in a year at unit level.
(c) Organisation of seminars, debates and workshops at field and force levels.
The following list of Do's and Dont's with regard to observation of Human Rights by Force
personnel in their operations has been issued by the CRPF Directorate General, both in
Hindi and English.11
Human Rights: Do's and Dont's
Do's
Do respect every individual as a human being irrespective of his caste, creed,
religion, region or nationality.
Do remember that you are a member of the public and you have been employed to
act on their behalf.
10
Air Commodore Ranvir Kumar and Group Captain B.P Sharma, Human Rights and the Indian
Armed Forces, Sterling Publishers Pvt. Ltd, New Delhi, 1998, pp.225-226 11
Omar Khalidi, Khaki and Ethinic Violence in India: Armed Forces, Police and Paramilitary Forces
during Communal Riots, Three Essays Collective, Delhi, 2009, p.165.
151
Do always keep the welfare of the people in mind and be sympathetic and
considerate towards them.
Do render all assistance to the needy irrespective of his economic, social or political
status particularly children, women, old and infirm persons.
Do enforce the law firmly and impartially without fear or favour, malice or
vindictiveness.
Do rise above personal prejudices of any kind and promote harmony amongst all
people transcending religious, linguistic regional and sectional diversities.
Do provide protection to a person in custody even if he is a criminal, terrorist or
insurgent and ensure that while in custody no physical or mental harm is done to
him.
Do remember that you have a special responsibility to protect the interests of
weaker sections of society including women and children.
Do scrupulously respect the privacy of every individual while performing your
duties.
Do remember that honest, courteous, dependable and impartial conduct makes
enforcement of law acceptable to the common man and earns their respect,
cooperation and trust.
Dont's
Do not try to achieve results at the cost of human dignity and values.
Do not usurp the functions of judiciary in any circumstance and punish the guilty to
avenge or teach a lesson.
Do not indulge in molestation of women or any person.
Do not damage or take away property of any person.
Do not use more force than what is authorised by law or required for the
achievement of task assigned.
Do not use force in panic to avoid injury to innocent persons specially women and
children.
Do not carry out personal search of women without Mahila constables or
respectable women of the area.
Do not indulge in custodial violence or maltreatment. It is illegal and
152
counterproductive.
Do not fan hatred, anger and partisanship.
Do not hurt the religious feelings of any person by desecrating any religious place
or by showing disrespect to any religion.12
4.1.4 Awareness of Human Rights within the Indian Police Forces
As in other forces, considerable efforts are made to disseminate Human Rights amongst the
States' police forces of the country. Human Rights form a regular course of instructions in
all police academies, schools, and training institutions. Following recommendations of the
Third Police Commission, regular seminars, workshops and discussions are conducted on
Human Rights from time to time. The police officers at the middle and higher levels are
exposed to the principles of Universal Declaration Of Human Rights and international
instruments on Human Rights, Human Rights relevant to the criminal procedure in India,
relevant areas of the Indian Constitution, the Supreme Court of India and case laws on
Human Rights, and NHRC (its organisation, role and function).
The United Nations General Assembly had on 17 December, 1979, adopted a code of
conduct for the law enforcement officials. In India, the following Code of Conduct for
police was adopted and issued by the Government of India in July 1985.13
Code of Conduct for the Police
The code, interalia, emphasises the following:
(1) The Police must bear faithful allegiance to the Constitution of India and respect and
uphold the rights of the citizens as guaranteed by it.
(2) The Police should enforce the law firmly and impartially, without fear or favour,
malice or vindictiveness.
(3) The Police should recognise and respect the limitations of their powers and
functions.
12
Omar Khalidi, Khaki and Ethinic Violence in India: Armed Forces, Police and Paramilitary Forces
during Communal Riots, Three Essays Collective, Delhi, 2009, p.167. 13
National Human rights Commission, Manual on Human Rights for Police Officers, New Delhi,
2011, p.10.
153
(4) In Securing the observance of law or in maintaining order, the Police should as far
as possible, use the methods of persuasion, advice and warning. When the
application of force becomes inevitable, only the irreducible minimum of force
required in the circumstances should be used.
(5) The Police should always keep the welfare of the people in mind and be
sympathetic and considerate towards them.
(6) The Police should always place duty before self, should remain calm in the face of
danger, scorn or ridicule and should be ready to sacrifice their lives in protecting
those of others.
(7) The Police should always be courteous and well-mannered; they should be
dependable and impartial.
(8) The Police should renounce practices derogatory to the dignity of women and
disadvantage segments of the society.
4.2 Review of Repressive Laws in India and Human Rights Violations
The problem of terrorism is not a new one in human rights agenda. Acts of terrorism has
imperiled and killed innocent people, jeopardized fundamental freedoms and seriously
impaired the dignity of human beings for so many years . States have therefore long been
under an obligation to take measures to protect the fundamental rights of everyone within
their jurisdictions against terrorist acts.
rdinary
-ranging challenges
with and what are the implications for human rights can be a useful exercise. If one looks at
the history of legislation on terrorism or disturbance, there was the Preventive Detention
Act 1950 at the advent of Independence followed by the Punjab Security Act 1955, Assam
Disturbed Areas Act 1955, and the Armed Forces (Assam and Manipur) Special Powers
Act, 1958. In the 1960s and 1970s there were two major acts passed in each decade and in
the 1980s there were five acts and in the 1990s there were two acts. There are about 20 to
154
30 repressive acts passed either at the central or the state levels.14
Since the 1980s, specific laws came to be enacted to address the issue of terrorism. These
include the Terrorist and Disruptive Activities (Prevention) Act (TADA) 1987, the
Prevention of Terrorism Act (POTA) 2002 and the amendments to Unlawful Activities
(Prevention) Act (UAPA) in 2004 and 2008. By enacting these laws, the government has
treated terrorism to be a special crime that warrants special and stringent laws.
(i) Terrorist and Disruptive Activities (Prevention) Act (TADA) was formulated in
defined under this law. The judiciary has stated that it is not possible to give a
precise definition of terrorism, but that what distinguished terrorism from other
forms of violence was the deliberate and systematic use of coercive intimidation.
From 1984 onwards, approximately 75000 people were detained under TADA; of
these, at least 73000 cases were subsequently withdrawn for lack of evidence. The
conviction rate under TADA was less than one percent, indicating that more than
99% cases booked under the law were not backed by substantive evidence. Though
the Supreme Court upheld the validity of the TADA in Kartar Singh vs. State of
Punjab, the law was criticized by human rights organizations as well as political
parties on various counts. Justice Pandian, who led the majority judgment in Kartar
spurt in the illegal criminal activitie
failed to take into account the harm done to a large number of innocent people.
lapse in May 1995 by the P.V. Narasimha Rao government, due to reports of
widespread abuse. However cases initiated under it continued to have legal validity
and remained pending in courts.15
14
ndian Experience with
Economic and Political Weekly, June-July, 2009, p.77. 15
Economic and Political Weekly, June-July, 2009, p.79.
155
(ii) Prevention of Terrorism Act (POTA) was enacted by the National Democratic
Alliance (NDA) government in 2002, against the backdrop of the attacks on the
World Trade Centre in New York on 11 September 2001. Several attacks in the
state of Jammu and Kashmir, and the attack on the Indian Parliament in December
2001 acted as catalysts for the enactment. POTA allowed for detention of a suspect
up to 180 days without filing charges in court. It also allowed authorities to
withhold identity of witnesses, treated confessions to police as admissions of guilt,
and included provisions for banning organizations and for cracking down on
funding for terrorism.
One of the most high-profile arrests under POTA was not of a terrorist, but of a
politician from Tamil Nadu V. Gopalaswami alias Vaiko. It was also widely
reported that in 2002-2003, the law was misused to arrest and detain hundreds of
Muslims in Gujarat for years without a trial. Syed Abdul Rehman Geelani,
described as a mastermind in the attack on the Indian Parliament in 2001, was given
a death sentence by a POTA court but was subsequently acquitted by the High
Court and the Supreme Court in 2005 because of lack of evidence. Over a 100
Parliamentarians had signed a petition for repeal of POTA, and the National Human
Rights Commission pointed to its misuse. POTA was repealed in 2004. Prime
Minister Manmohan Singh, while expressing the decision to repeal the law, stated
any cause testified in public. The Tribunal highlighted the fact that adivasis and
dalits who were engaged in land reforms and protested against bonded labour were
falsely labeled Naxalites and booked under this law, and that charges under POTA
had also been made against children, illiterate persons and poor farmers.16
(iii) Amendments to Unlawful Activities (Prevention) Act (UAPA), 1967: The
United Progressive Alliance (UPA) government had repeatedly said that India
already has a number of stringent laws such as NSA and UAPA, and hence there
16
Economic and Political Weekly, Vol.38, No.18, May,
2003, p.1741.
156
was no necessity to enact another specific anti-terror law. However, when it
repealed POTA in 2004, it brought about amendments to UAPA. These included
increased punishment for committing acts of terrorism, enhanced police powers of
seizure, communication intercepts made admissible as evidence and extended
periods of detention without charges to 90 days from the original 30 days. In the
backdrop of terrorist attacks in Mumbai in November 2008, the UPA government
introduced anti-terrorism provisions by bringing about further amendments to the
UAPA. Detention without bail for up to 180 days for Indians, indefinite detention
without bail for foreigners and reversing the burden of proof in many instances are
some of the amendments brought about.
(iv) Maintenance of Internal Security Act (MISA) was a law passed by the Indian
Parliament in 1973 under the leadership of Prime Minister Indira Gandhi. This law
was enacted purportedly to counter civil and political disorder in India as well as
foreign-inspired sabotage, terrorism and threats to national security. It gave the
Prime Minister and the enforcement agencies powers of indefinite preventive
detention of individuals, search and seizure of property without warrants, in direct
contravention of Constitutional guarantees of fundamental rights and established
standards of human rights. During the national emergency in 1975-77, thousands of
people, including political opponents, are believed to have been arbitrarily arrested,
detained, tortured and in some cases, forcibly sterilized. Lalu Prasad Yadav,
L.K.Advani and Atal Bihari Vajpayee are some notable political leaders imprisoned
under this law. The law was repealed in 1977 pursuant to a change of government.
(v) Armed Forces (Special Powers) Act (AFSPA) is a law that has been in operation
since 1958. It was first used in Nagaland in response to the Naga independence
movement in the late 1950. It was subsequently introduced in Mizoram and
Manipur, and briefly in Assam. In 1972, it was extended to all the seven North
Eastern states. It is said that the AFSPA is a colonial instrument, modeled on the
Armed Forces Special Power Ordinance 1942, which had been enacted to neutralise
the Quit India Movement. AFSPA grants power to the Central government or the
governor of the state to declare any par
157
the opinion that the use of armed forces to aid civil power is necessary by giving
notification in official gazette.
In the backdrop of the growing insurgency in Jammu and Kashmir, the Central government
issued a similar enactment known as the The Armed Forces (Jammu and Kashmir) Special
Powers Act, 1990. It empowers the Governor or the Central government to declare any part
vent (a)
terrorist acts aimed at overthrowing the government, striking terror in the people, or
affecting the harmony of different sections of the people or (b) activities which disrupt the
sovereignty of India, or cause insult to the national flag, anthem 17
4.2.1 Armed Forces Special Powers Act and its Provisions
The provisions of the act are similar to those of the first passed in 1958. The basic features
of the act are as follows:-
Section 1. This section states the name of the act and the areas to which it extends.
Section 2. This section sets out the definition of the act.
Sub section (a). the armed forces were defined as "Military forces and air forces operating
as land forces, and includes any other armed forces of the union so operating".
Sub section (b).
Sub section (c). It states that all other words and expressions used but not defined in the act
will have the meanings assigned to them in the Army Act of 1950 or Air Force Act 1950.
Section 3. It grants the power to declare an area disturbed to the Central Government and
the Governors of the state. Governor of that state or the administrator of that Union
Territory or the Central Government, as the case may be, may, by notification in the official
17
Economic and Political Weekly, June-July, 2009, p.83.
158
gazette, declare the whole or such part of such state or union territory to be a disturbed area.
Section 4. It enumerates the special powers of the armed forces, which are deployed in a
state or a part of the state to act in aid of civil power. The section reads that any
commissioned officer, warrant officer, non-commissioned officer or any other person of
equivalent rank in the armed forces may, in a disturbed area,
Sub section (a). If he is of opinion that it is necessary so to do 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 prohibiting the assembly
of five or more persons or the carrying of weapons or of things capable of being used as
weapons or of firearms, ammunition or explosive substances.
Sub section (b). If he is of opinion that it is necessary so to do, destroy any arms dump,
prepared or fortified position or shelter from which armed attacks are made or are likely to
be made or are attempted to be made, or any structure used as training camp for armed
volunteers or utilised as a hideout by armed gangs or absconders wanted for any offence.
Sub section (c). Arrest, without warrant, any person who has committed a cognizable
offence or against whom a reasonable suspicion exists that he has committed or is about to
commit a cognizable offence and may use such force as may be necessary to effect the
arrest.
Sub section (d). Enter and search without warrant any premises to make any such arrest as
aforesaid or to recover any person believed to be wrongfully restrained or confined or any
property reasonably suspected to be stolen property or any arms, ammunition or explosive
substances believed to be unlawfully kept in such premises, and may for that purpose use
such force as may be necessary.
Section 5. This section states that any person arrested and taken into custody under this
act shall be handed over to the officer-in-charge of the nearest police station with least
possible delay, together with a report of the circumstances occasioning the arrest.
159
Section 6. This section confers a protection upon the persons acting under the act. No suit,
prosecution or other legal proceeding can be instituted against such person in respect of
anything done or purported to be done in exercise of the powers conferred by this act,
except with the previous sanction of the Central Government.
4.2.2 Argument against the legality of Armed Forces Special Powers Act
Various Human Rights Organisations have pointed out many shortcomings of the Armed
Forces Special Powers Act and blame it to be illegal. Some of the important aspects are
enumerated in succeeding paragraphs. Several cases challenging the constitutionality of
Armed Forces Special Powers Act are pending before the Supreme Court. The following
provisions of the Indian laws and International laws are alleged to be contravened by this
act:-
(i) Name of the Act:
special powers to be conferred upon members of the armed forces in disturbed
eyebrows of people.
(ii) Over-riding Powers of Central Government: As per provisions of this act either
State or the Central Government is empowered to declare an area as disturbed area.
The Central Government may overrule the state government in case of any dispute
between the two. This provision at times creates problems. The 1972 amendments
to the AFSPA extended the power to declare an area disturbed to the Central
Government. In the 1958 version of the AFSPA only the State Governments had
this power. In the 1958 debates the authority and power of the states in applying
the AFSPA was a key issue. The Home Minister had argued that the AFSPA
chose.18
The 1972 amendment shows that the Central Government is no longer
concerned with the state's power. Rather, the Central Government now has the
ability to overrule the opinion of a State Governor and declare an area disturbed.
18
Mainstream,
Vol.32, July, 2004.
160
This happened in Tripura, when the Central Government declared Tripura a
disturbed area, over the opposition of the State Government.
(iii) Violation of Right to Life: Article 21 of the Indian Constitution guarantees the
right to life to all people. It reads, "No person shall be deprived of his life or
personal liberty except according to procedure established by law." Judicial
interpretation that "procedure established by law means a "fair, just and reasonable
law" has been part of Indian jurisprudence since the 1978 case of Maneka Gandhi.
This decision overrules the 1950 Gopalan case which had found that any law
enacted by Parliament met the requirement of "procedure established by law".
Under section 4(a) of the AFSPA, which grants armed forces personnel the power
to shoot to kill, the constitutional right to life is violated. This law is not fair, just or
reasonable because it allows the armed forces to use an excessive amount of force.
The offences under section 4(a) are: "acting in contravention of any law or order for
the time being in force in the disturbed area prohibiting the assembly of five or
more persons or the carrying of weapons or of things capable of being used as
weapons or fire-arms, ammunition or explosive substances". None of these offences
necessarily involve the use of force. The armed forces are thus allowed to retaliate
with powers which are grossly out of proportion with the offence. Justice requires
that the use of force be justified by a need for self-defense and a minimum level of
proportionality. As pointed out by the UN Human Rights Commission, since
"assembly" is not defined, it could well be a lawful assembly, such as a family
gathering, and since "weapon" is not defined it could include a stone. This shows
how wide the interpretation of the offences may be, illustrating that the use of force
is disproportionate and irrational.19
(iv) Violation of Right of Equality: Article 14 of the Indian Constitution guarantees
equality before law. This article guarantees that "the State shall not deny to any
person equality before the law or the equal protection of the laws within the
territory of India." The AFSPA is in place in limited parts of India. Since the people
19
Economic and Political Weekly, Vol.44, 2009, p.11.
161
residing in areas declared "disturbed" are denied the protection of the right to life,
denied the protections of the Criminal Procedure Code and prohibited from seeking
judicial redress, they are also denied equality before the law. Residents of non-
disturbed areas enjoy the protections guaranteed under the Constitution, whereas
the residents of the Northeast live under virtual army rule. Residents of the rest of
the Union of India are not obliged to sacrifice their Constitutional rights in the name
of the "greater good". People residing in disturbed areas are denied this right due to
provision of section 6 of the act which prevents citizen from filing a suit against the
member of armed forces without the sanction of the Central Government.20
(v) Violation of Protection Against Arrest and Detention: Article 22 of the Indian
Constitution states that "(1) No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for such arrest nor shall
he be denied the right to consult, and to be defended by, a legal practitioner of his
choice. (2) Every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the place of arrest to the court of
the magistrate and no such person shall be detained in custody beyond the said
period without the authority of a magistrate." The remaining sections of the Article
deal with limits on these first two sections in the case of preventive detention laws.
On its face, the AFSPA is not a preventive detention law therefore the safeguards of
sections (1) and (2) must be guaranteed to people arrested under the AFSPA.
Section (2) of Article 22 was the subject of much debate during the framing of the
Indian Constitution. There was argument over whether the time limit should be
specified or whether the words "with the least possible delay" should be used. Dr
Amedkar, one of the principal framers of the Indian Constitution argued that "with
the least possible delay" would actually result in the person being held for a shorter
period of time, whereas "twenty- four hours" would result in the person being held
for the maximum time of twenty-four hours. The application of these terms has
since shown that a specified time period constitutes a greater safeguard. Under the
AFSPA, the use of "least possible delay" language has allowed the security forces
20
of Review, Economic and Political Weekly, Vol.44, 2009, p.15.
162
to hold people for days and months at a time. A few habeas corpus cases in which
the court did find the delay to be excessive are indicative of the abuses which are
occurring in practice.21
(vi) Preventive Detention Law: If the detention of arrested persons beyond 24 hours is
defended on grounds of Preventive Detention Law, it still violates the provision of
the law. As per provision of this law any person arrested without a warrant cannot
be held for more than three months. Any detention longer than three months has to
be reviewed by an advisory board. No such provision has been incorporated in
Armed Forces Special Powers Act.
(vii) The Indian Criminal Procedure Code (CrPC): The Criminal Procedure Code
describes the procedures that the police is to follow for arrests, searches and
seizures. Armed forces are not trained on these procedures and hence do not follow
them. The CrPC has a section on the maintenance of public order, Chapter X,
which provides more safeguards than the AFSPA. Section 129 in that chapter
allows for the dispersal of an assembly by use of civil force. The section empowers
an Executive Magistrate, officer-in-charge of a police station or any police officer
not below the rank of sub-inspector to disperse such an assembly. It is interesting to
compare this section with the powers the army has to disperse assemblies under
section 4(a) of the Act. The CrPC clearly delineates the ranks which can disperse
such an assembly, whereas the Act grants the power to use maximum force to even
to non commissioned officers. Moreover, the CrPC does not state that force to the
extent of causing death can be used to disperse an assembly.
Sections 130 and 131 of the same chapter sets out the conditions under which the
armed forces may be called in to disperse an assembly. These two sections have
several safeguards which are lacking in the Act. Under section 130, the armed forces
officers are to follow the directives of the Magistrate and use as little force as
necessary in doing so. Under 131, when no Executive Magistrate can be contacted,
the armed forces may disperse the assembly but if it becomes possible to contact an
21
- Military Law Journal, June, 2002,
p.403.
163
Executive Magistrate at any point, the armed forces must do so. Section 131 only
gives the armed forces the power to arrest and confine. Moreover, it is only
commissioned or gazetted officers who may give the command to disperse such an
assembly, whereas in the AFSPA even non-commissioned officers are given this
power. The AFSPA grants wider powers than the CrPC for dispersal of an assembly.
Moreover, dispersal of assemblies under Chapter X of the CrPC is slightly more
justifiable than dispersal under Section 4(a) of the AFSPA. Sections 129-131 refer
to the unlawful assemblies as ones which "manifestly endanger" public security.
Under the AFSPA the assembly is only classified as "unlawful" leaving open the
possibility that peaceful assemblies can be dispersed by use of force.
Chapter V of the CrPC sets out the arrest procedure the police are to follow. Section
46 establishes the way in which arrests are to be made. It is only if the person
attempts to evade arrest that the police officer may use "all means necessary to
effect the arrest." However, sub-section (3) limits this use of force by stipulating
that this does not give the officer the right to cause the death of the person, unless
they are accused of an offence punishable by death or life imprisonment. This
power is already too broad. It allows the police to use more force than stipulated in
the UN Code of Conduct for Law Enforcement Officials. Yet the AFSPA is even
more excessive. Section 4(a) lets the armed forces kill a person who is not
suspected of an offence punishable by death or life imprisonment.
(viii) Lack of Remedy to the Victim: Section 6 of Armed Forces Special Powers Act
violates the provision of section 32(1) of the constitution that state the right to move
to the Supreme Court in case any violation of his basic rights guaranteed by the
Constitution. Section 6 of the AFSPA "immediately takes away, abrogates, pinches,
frustrates the right to constitutional remedy which has been given in article 32(1) of
the Constitution." This further shows that the AFSPA is more than an emergency
provision because it is only in states of emergency that these rights can be
constitutionally suspended.
164
(ix) State of Emergency: In a state of emergency, fundamental rights may be
suspended under Article 359, since the 1978 amendment to this article, rights under
Articles 20 and 21 may not be suspended. As shown above, the AFSPA results in
the suspension of Article 21 right to life, therefore AFSPA is more draconian than
emergency rule. Emergency rule can only be declared for a specified period of time,
and the President's proclamation of emergency must be reviewed by Parliament.
The AFSPA is in place for an indefinite period of time and there is no legislative
review. Armed Forces Special Powers Act grants the state of emergency powers to
the armed forces without declaring a state of emergency as prescribed in the
constitution.22
(x) International Laws: Human rights organisations like United Nations Human
Rights Commission claim that Armed Forces Special Powers Act violates the
various provisions of United Nations Universal Declaration on Human Rights and
many other International Laws. They include violation of the rights of free and
equal dignity, non discrimination, life, security, no torture, equality before law, no
arbitrary arrests etc.
(xi) International Covenant on Civil and Political Rights (ICCPR): As per
provisions of International Covenant on Civil and Political Rights some of the
rights of the citizens e.g. right to life, prohibition of torture etc remain non
derogable even in case of emergencies. Armed Forces Special Powers Act violates
both derogable and non derogable rights. International Covenant on Civil and
Political Rights also guarantees that any person who is arrested has the right to
know the reason for his arrest. This provision is also violated by the Armed Forces
Special Powers Act as no armed forces authorities are obliged to inform the person
the reasons for his/her arrest. International Customary Law. The Armed Forces
Special Powers Act violates the United Nations Code of Conduct for Law
Enforcing Officials in terms of use of force including use of fire arms in addition to
22
Indian Bar Review, 39(2),
April-June, 2012, p.23.
165
the various other provisions which are repetitive of similar provisions in other
international laws.23
4.2.3 Review of the Armed Forces Special Powers Act
a) National review
The Supreme Court
The AFSPA has been challenged in the courts. In 1980, a Manipuri group named the
the constitutiona
same issue in 1982. However, the Supreme Court did not proceed in the matter for 15
years. In 1997, a five-member bench headed by Chief Justice J.S. Verma finally ruled on
the petitions challenging the act. The various petitions were combined into the case
of .24
On 27 November 1997 the Supreme Court of India rendered its judgment in
Movement for Human Rights v.Union of India. In this case the validity of the Act was
challenged by means of a writ petition before the Supreme Court of India. The petitioner
alleged that the Act had violated constitutional provisions that govern the procedure for
issuing proclamations of emergency, and upset the balance between the military and
civilian and the union and state authorities. The court rejected those contentions. It found
that the parliament had been competent to enact the Act and ruled that its various sections
were compatible with the pertinent provisions of the Indian Constitution. In particular, the
court held that the application of the Act should not be equated with the proclamation of a
state of emergency, which led to it finding that the constitutional provisions governing such
proclamations had not been breached. The court further emphasized that the military forces
had been deployed in the disturbed areas to assist the civilian authorities. As these
23
Gokulesh Sharma, , Human Rights and Legal Remedies, Deep & Deep Publications, Delhi, 2000
p.354. 24
AIR 1998 431.
166
the constitutional balance between the competencies of the military and the civilian
authorities had not been upset. Equally, the court found no violation of the constitutional
balance of competencies of the union and state authorities. The court upheld the
acting under the Armed Forces Special Powers Act 1958 which would provide effective
checks against any misuse or abuse of powers conferred. What the court did not address
was the compatibility of
other international obligations.25
Committees to review the Act set up by the Government
Jeevan Reddy Commission(2005)
The Union Ministry of Home Affairs set up a committee chaired by a retired justice of the
Supreme Court B. P. Jeevan Reddy with the view to review the provisions of the Act and
report to the government on whether amendment or replacement of the Act would be
advisable. Having conducted extensive studies and consultations, the committee submitted
its report in 2005 which included the following recommendations:
(a) AFSPA should be repealed and appropriate provisions should be inserted in the
Unlawful Activities (Prevention) Act, 1967;
(b) The Unlawful Activities Act should be modified to clearly specify the powers of the
armed forces and paramilitary forces and
(c) Grievance cells should be set up in each district where the armed forces are
deployed.
impression gathered by it during the course of its work that the Act, for whatever reason,
has become a symbol of oppression, an object of hate and an instrument of discrimination
and high-handedness
was not officially made public.26
25
Suresh Kumar Soni, Human Rights: Concepts Issues. Emerging Problems, Regal Publications, New
Delhi, 2007, p.21. 26
The Hindu, February, 2013, p.5.
167
The Second Administrative Reforms Commission in its fifth Report of 2007 also
the views of various stakeholders it came to the conclusion that AFSP Act should be
repealed
Hamid Ansari Confidence Building Measures in Jammu and Kashmir(2007)
The Prime Minister's Working Group on Confidence Building Measures in Jammu and
Kashmir (2007) headed by Shri Hamid Ansari and comprised of 17 other members drawn
from across the political spectrum also expressed serious concern over the incidents of
human rights violations in Jammu and Kashmir. The necessity of curbing human rights
violations are considered to be one of the most important measures to be taken so that the
innocent persons do not become victims of counter-insurgency measures. It was also felt
review and revocation of laws that impinge on fundamental rights of common citizens,
such as Armed Forces Special Powers Act. Law and order was to be maintained through
normal laws to the maximum extent.27
Interlocutors Report(2012)
Another step in this regard was, the Government of India had appointed an eminent Group
of Interlocutors Dileep Padgaonkar, Radha Kumar and M.M. Ansari to hold a sustained
The report deals with Centre-
State relations and internal devolution of powers, and suggests a road map listing
confidence-building measures. It favours amendment of the Public Safety Act, review of
Disturbed Areas Act, and re-appraisal of application of controversial Armed Forces Special
Powers Act (AFSPA).28
27
Human Rights Watch
Report, 2008, p.17. 28
Human Rights Watch
Report, 2008, p.19.
168
J.S Verma Committee (2013)
Justice J.S Verma Committee (2013) have recommended that the Act be repealed or made
more humane. The continuance of Armed Forces (Special Powers) Act (AFSPA) in
conflict areas needs to be revisited. At present, the AFSPA requires a sanction by the
Central Government for initiating prosecution against armed forces personnel. The
Committee has recommended that the requirement of sanction for prosecution of armed
forces personnel should be specifically excluded when a sexual offence is alleged.
Complainants of sexual violence must be afforded witness protection. Special
commissioners should be appointed in conflict areas to monitor and prosecute for sexual
offences. Training of armed personnel should be reoriented to emphasize strict observance
of orders in this regard by armed personnel.
Santosh Hegde commission on Manipur encounter deaths (2013)
A high-power commission headed by the retired Supreme Court judge, Santosh Hegde was
constituted in January 2013 to probe six encounter deaths in Manipur. The committee,
comprising former Supreme Court judge Santosh Hegde, Ex-CEC J M Lyngdoh and a
senior police officer, has said in its report that the probe showed that none of the victims
had any criminal records. The judicial commission set up by the Supreme Court is trying to
make the controversial Armed Forces Special Powers Act (AFSPA) more humane, and the
security forces more accountable. The committee has suggested fixing a time frame of
three months for the central government to decide whether to prosecute security personnel
engaged in extra-judicial killings or unruly behaviour in insurgency-hit regions. The
Commission noted that AFSPA was an impediment in achieving peace in regions such as
Jammu and Kashmir and the Northeast. The commission also said the law needs to be
reviewed after every six months to see whether its implementation is actually necessary in
states where it is being enforced. About Section 6 of the act, which guarantees protection
against prosecution to the armed f
taken at all. Action can be taken but with prior sanction of the central government.29
29
Jagran Josh, Current Affairs, Jagran Prakhashan, Delhi, 2013, p.172.
169
b) International review
UN Human Rights Committee(1997)
The AFSP Act was scrutinised on two occasions by the Human Rights Committee, a body
composed of independent experts that is established specifically to monitor the
implementation of the ICCPR by its states parties. The Committee first raised questions
about various provisions of the Act, such as the scope of the authorisation to use lethal
force, in 1991, during the consideration of
compliance with the ICCPR. In particular, the Committee
Inquired to what extent [the Act was] consistent with
provisions of the Covenant relating to the physical integrity of the
person and the obligation to bring a person to trial with the least
possible delay and, more generally, to provisions relating to
preventive detention and article 4 of the Covenant; whether the
authorization of the use of force even to the causing of death in
accordance with the Act was compatible with article 4, paragraph 2,
and article 6 of the Covenant.
In 1997 the Committee, while considering India
measures taken by India in order to protect its population against terrorist activities must
be in full conformity with its obligations under the ICCPR. It further expressed its
hope, in vain as it turned out, that the Supreme Court would examine the provisions of the
AFSP Act for their compatibility with the ICCPR in the context of the then pending
proceedings in Human Rights v. Union of India. The
Committee specifically underscored its concern about the fact that the Act had
remained in force in certain areas of India such as Manipur for decades, thus effectively
making emergency powers permanent without formally derogating from the ICCPR. It
further stressed that decisions on continued detention must be taken by an independent and
impartial tribunal and that a central register of detainees be maintained and shared with
170
the International Committee of the Red Cross.30
respect the rule of law and that, in particular, court orders for habeas corpus are not always
complied with, in particular, in
reminded India that immunity provisions, such as those found in the AFSP Act,
are incompatible with the right to an effective remedy under international human rights law
and the concomitant duty to investigate and prosecute gross human rights violations, such
as torture. It expressed its concern
That criminal prosecutions or civil proceedings against
members of the security and armed forces, acting under special
powers, may not be commenced without the sanction of the Central
Government. This contributes to a climate of impunity and deprives
people of remedies to which they may be entitled in accordance with
article 2, paragraph 3, of the Covenant.31
The United Nations Special Rapporteur on Extrajudicial, Summary and Arbitrary
Executions(2006)
The United Nations Special Rapporteur on Extrajudicial, Summary and Arbitrary
Executions lucidly summarized the impunity and extra-judicial executions in her report to
human rights offenders seriously undermines the rule of law, and also widens the gap
between those close to the power structures and others who are vulnerable to human rights
abuses. In this way, human rights violations are perpetuated or sometimes even
encouraged, as perpetrators feel that they are free to act in a climate of impunity,
extrajudicial killings and acts of murder may sometimes also go unpunished because of the
sex, religious belief, or ethnicity of the victim. Long-standing discrimination and prejudice
against such groups are often used as justification of these crimes. The increasing
30
Human Rights Committee, Report to the General Assembly, UN Doc CCPR/46/40, Dec 10, 1991, at
para 268. 31
Human Rights Committee, Report to the General Assembly, UN Doc CCPR/46/40, Dec 10, 1991, at
para 278.
171
difficulties in securing justice alienate the people from the State and may drive them to take
the law into their own hands, resulting in a further erosion of the justice system and a
vicious circle of violence and retaliation. If unaddressed, such situations may easily
degenerate into a state of anarchy and social disintegration. Human rights protection and
respect for the rule of law are central to lasting peace and stability. It is, therefore, crucial
that conflict prevention strategies and post-conflict peace-building efforts include effective
While examining the third periodic report of the government of India, an expert of the
Powers) Act, which prevented all legal proceedings against members of the armed forces,
or frivolous actions, that was a matter better left to the courts to resolve. It was inadmissible
32
concern that criminal prosecutions or civil proceedings against members of the security and
armed forces, acting under special powers, may not be commenced without the sanction of
the Central Government. This contributes to a climate of impunity and deprives people of
remedies to which they may be entitled in accordance with article 2, paragraph 3, of the
There are adequate legal guarantees for preventing vexatious and frivolous actions.
However, by making it mandatory to seek prior permission of the Central government to
initiate any legal proceedings against the armed forces, the Executive has expressed its lack
of faith in the judiciary of the country.33
Committee on the Elimination of Racial Discrimination(2007)
The Committee on the Elimination of Racial Discrimination is a body responsible for
monitorin kes provision for
32
Jagran Josh, Current Affairs, Jagran Prakhashan, Delhi, 2013, p.180. 33
Jagran Josh, Current Affairs, Jagran Prakhashan, Delhi, 2013, p.198.
172
regular state reports to this committee, which considered India ined fifteenth to
nineteenth periodic reports in 2007. It recommended to the Government of India to repeal
human of legislation, specifically underlining its
concern about the provisions of of the armed forces may
of
powers to search and arrest suspects without a warrant or to use force against
persons... in Manipur and other northeastern States which are inhabited by tribal
34
Committee on the Elimination of Discrimination against Women(2007)
The Committee on the Elimination of Discrimination against Women is a body responsible
of All
Forms of Discrimination against Women.
When the Committee on the Elimination of
second and third periodic reports in 2007, it noted the gender aspect of the abuses created or
tolerated by the continued application of the Act in the disturbed areas of India and urged
the
that investigation and prosecution of acts of violence against women by the military in
This gender aspect, which should be properly considered and addressed, includes the fact
that women are disproportionately affected by violence; gross patterns of violence
facilitated by the Act involve women being routinely raped, sexually assaulted, beaten or
killed in their homes and in public during military operations. Human rights violations of a
sexual nature lead to a climate of fear heightened by the lack of institutional
protection coupled with the social stigma attached to such violations. The immunity that
the Act provides to the military officers involved in the operation within the disturbed areas
likewise affects women disproportionately. It constitutes yet another obstacle adding to
34
Committee on Elimination of Racial Discrimination, Concluding observations on the combined
Fifteen to Nineteen Periodic Reports of India, UN Doc CERDAW/C/IND/CO 19(5 May2007) at
para. 12.
173
many factors which already impede women from accessing justice, among them limited
education and the burden of economic dependence and heavy domestic responsibilities.35
4.3 Human Rights and Security Forces in Low Intensity Conflicts
security forces & every act of a terrorist or insurgent is attributed as
a colossal failure of secur
The quote above describes the situation under which thousands of armed forces personnel,
deployed to fight the anti national and anti social elements in low intensity conflict
operations in the North Eastern region for more than five decades and for more than two
decades in Jammu & Kashmir.
One of the greatest threats to the future of Indian democracy is terrorism which has almost
become a way of life in the North Eastern states. Pakistan has been waging a proxy war in
Jammu & Kashmir since 1989. She has been infiltrating armed militants and promoting
insurgency on a very large scale. Failure of the civil administration to control the situation
has led to the deployment of the armed forces in low intensity conflict operations. Though,
the security forces have been able to bring the situation under control, at the same time has
also brought up the issues of violation of human rights from time to time.
The security forces when called upon to deal with insurgency and terrorism have to bear in
mind the parameters within which they have to function. Rule of the law is the yardstick to
follow. Terrorism is not to be countered with state-terrorism. No doubt terrorism,
regardless of motivation has to be condemned and countered but this has to be done taking
necessary measures, in accordance with the relevant provisions of international law and
international standards of human rights, to prevent, combat and eliminate terrorism
rule of law.36
35
Committee on Elimination of Discrimination Against Women, Concluding Comments on the
Combined Second and Third Periodic Reports of India, UN Doc CEDAW/C/IND/CO/3, 2 February
2007 at para 7. 36
Indian Journal of
Criminology and Criminalistics, Vol.19, 1998, p.116.
174
Low Intensity Conflicts create highly stressful situation as the security forces have to deal,
not with external enemies, but with law breaking elements of its own nation. The security
forces are required to operate in a hostile environment which puts them under severe
psychological strain. Constant fear of failure, coupled with extended period of operations
and a sense of frustration due to lack of visible success contribute to great mental stress on
the troops. An additional source of stress is generated by the pressure of human rights
issues, raised not only by organizations such as Amnesty but also by the media and
occasionally, by the local administration also. The troops find it difficult to understand as to
why human rights violation by the militants are largely ignored while even a minor excess
by security forces is given wide publicity.
In low intensity conflict area the security forces have to deal with an invisible and cunning
enemy. It is quite difficult to distinguish a friend from the foe unless one is in full
command of his mental faculties. The need to have a mentally alert and energetic security
force in the disturbed areas cannot be over stressed. Unfortunately, our security forces are
deployed without respite in disturbed areas in inhospitable conditions. They are away from
their families and normal life for years on end. Even the so called rotation of duties is from
frying pan to fire, one disturbed area to a more disturbed one. There is a limit to which a
normal security personnel can withstand stress. When he cracks up, errors in judgement
take place and a sadistic streak surfaces. He associates all his ills with the local situations
and when he gets an opportunity, he takes it on the local population.37
4.3.1 Ground Realities in Low Intensity Conflict Area
The armed forces in India is facing a major dilemma in bonafide discharge of their duty,
whether to give overriding priority to individual rights over unity and integrity of the nation
even in low intensity conflict area. If yes, how to deliver the goods for which they have
been tasked. If not, how to deal with free press and over jealous judicial activism. To
understand this dilemma the following ground realities should also be appreciated in their
proper perspective.
37
J.S Verma, The New Universe of Human Rights, Universal Law Publishing Co Ltd, Delhi, 2004,
p.19.
175
1) Totalitarianism is an ideal condition for the growth of state terrorism. Political
democracy is an ideal system for the growth of anti state- terrorism. In a
parliamentary democracy such as ours, liberal laws and lenient criminal justice
system make punishment difficult, sometimes impossible. This is more so when a
reign of terror is let loose by terrorist groups.
2) The terrorists successfully provoke the state to use indiscriminate mass- violence
and have thereby been able to win sympathy, though temporarily from the
community.
3) The law enforcement agencies often had two difficult options- -
-
would bring out loss of popular support and legitimacy. It is difficult to calibrate the
response on all occasions to a degree of perfection so that it remained minimum and
balanced, despite grave provocations.
4) Lack of community support and cooperation, and also malfunctioning of the
existing judicial system in disturbed areas often provoke the forces to use wrong
and repressive methods.
5) The killing of colleague force personnel by the terrorists and militants often
provoke the forces to retaliate. It becomes difficult for forces to show Ghandhian
restraint in these circumstances.
6) In a developing country such as ours, there is bound to have wide variations in the
perception of human rights issues and the concern for human rights not only in
respect of functionaries of the judiciary and the police but also within the force
itself. For, the educational, cultural and family backgrounds of a force personnel at
a lower level are altogether different from an officer at the higher level.
The security forces are thus required to handle internal security duties with firmness and
courtesy so that its reputation for being just, impartial, friendly and professionally
competent is maintained at all times and basic rights of the public also not violated.38
38
J.S Verma, The New Universe of Human Rights, Universal Law Publishing Co Ltd, Delhi, 2004,
pp.21-22.
176
4.3.2 Actions to be taken by the Armed Forces in Low Intensity Conflict
Operations
1. Do's and Don'ts: While operating in low intensity conflict operations environment
Do's And Don'ts issued by Army Headquarters must be adhered to very strictly as
per directions given by the Supreme Court.
2. Training: Units must be thoroughly trained before their induction into low
intensity conflict operations environment. The training syllabus in addition to
tactical aspects must emphasize on respect for human rights/humanitarian laws and
how to deal with the public. It should also cover the aspects of Armed Forces
Special Power Act thoroughly so that all ranks of the armed forces are aware of the
provisions and limitations of the law ensuring that the law is not misused and also
the rights of the public are respected. Following are some important issues on
which training is required
a) Concept of Human Rights, International Declarations on Human Rights and
Provision of Human Rights: In Indian Constitution these concepts are required to
be included in the syllabus of training. Most of the cases of human rights violation
take place due to inadequate knowledge of armed forces personnel specially of
lower ranks on the subject. This subject must form part of all possible
courses/cadres/training activities at all levels.
b) AFSPA: All ranks must be made to understand all provisions of AFSP act or any
other similar act if enacted in future, thoroughly by imparting instructions on the
subject and briefings from time to time. It should also be ensured that all ranks are
aware of Do's and Don'ts on the subject. There should be Psychological
Conditioning of Troops. All ranks must be trained to understand the nature of
operations in low intensity conflict environment and conditioned to operate and
undertake difficult task in such environment. They should be mentally prepared to
not to get provoked by the militants and retaliate thereby causing collateral
damages.39
39
CBI Bulletin, Vol.2, 1994,
p.70.
177
c) Interrogation Techniques. Technique of interrogation and screening of local
population should be imparted to selected persons and they should only be teached
to carry out these tasks. Most of human rights violations occur when inappropriate
and unauthorised methods of interrogation are applied to extract information.
d) Training on Handling of Media. A selected group of persons should be trained in
handling of media to ensure that the media is used in appropriate manner to
highlight own achievements and also prevention of wrong reporting/interpretation
by the media.
3. Surgical Operations: Carrying out of surgical operations should be encouraged to
eliminate the miscreants with minimum loss of life and property. It must be
understood by all ranks that any action to be taken for effect is to incapacitate and
not to kill as far as possible while dealing with civil population. The tendency to
over react can be checked to a large extent by psychological conditioning of troops
and training.40
4. Intelligence Net Work: A sound intelligence network must be established in the
area of responsibility. Various intelligence agencies operating in the area must be
integrated at all possible levels. Units must cultivate reliable informers for
intelligence gathering.
5. Investigation of Allegations: Any case of allegation of violation of human rights
by the members of the armed forces must be investigated promptly and fairly.
Tendency to save the guilty (if found guilty) must be avoided at all costs. Discipline
must not be diluted under any circumstances. The guilty should be awarded
exemplary punishment which should also act as deterrence to others.
6. Change in Mind Set: Some changes are required in the mind set of armed forces,
specially the senior officers in the field of conduct of operations in low intensity
conflict operations environment. The following changes are recommended to
40
Indian Police Journal,
Vol. XLV No.4, 1998, p.42.
178
promote respect for human rights:-
a) Number Game. Sometimes competence of units is judged, based on the number of
personnel killed/captured and number/quantity of captured weapons/ammunition.
This must stop immediately to help prevention of human rights violation.
b) Compulsion to Show Quick Results. Due to compulsion to show quick results,
units sometimes start operating outside the law. Units must be given adequate time
to settle down, area familiarization and minimum pressure for execution of tasks.
The members of armed forces undergo tremendous stress while operating in low
intensity conflict operations environment due to various professional and social
causes. In addition, units are sometimes given orders to do a particular job at any
cost. Such orders ultimately end up with some human rights violation. Therefore,
there should be minimum pressure on the units to carry out their tasks.
c) Transparency of Operations. The transparency of operations must be ensured by
involving the civil administration and media to the sensitive operations.41
7. Conduct of Operations: Surgical operations based on hard intelligence should
be the norm in low intensity conflict operations environment. Skill of sharp
shooting must be developed to avoid collateral damages. Local police must form
part of all operations. Elements of local administration and media should also be
involved as far as possible to ensure transparency of the operations. In addition to
the Do's and Don'ts on the subject, Village elders should be incorporated as eye
witnesses during conduct of search operations; In chance encounters, response from
troops should be guarded and only directed at identified hostile or
miscreants. When detentions are made screening must be done at the earliest and
innocent civilians allowed to go away. Even in the event of casualties to own troops
retaliation or repression must be avoided at all costs. Do not indulge in
indiscriminate firing and do not use excessive force under any circumstances; Do
41
Indian Police Journal,
Vol. XLV No.4, 1998,p.45.
179
not ill treat anybody, women and children in particular.
8. Safeguard Against Fabricated Allegations:
Ensure that police representatives are present during operations involving civil
population; incorporate women police personnel while searching villages/
houses. Ensure the presence of villages elders during search operations; Ensure that
personnel concerned, duly countersigned by the village authorities; Hand over
arrested personnel to civil police only after medical check-up. Also obtain a
handing over certificate from the police and a copy of the first information report
lodged; All arrests/releases must only be made through the civil police.42
9. Improvement of Media Handling:
Specialised training for officers in media handling; Press briefings must be held
regularly. The reasons for army actions must be explained to the press. There is
also a need for regular press releases. Institute measures to remove fear of the
militants from the press, the vernacular press in particular; Involve the press in
operations as far as possible; Disseminate information truthfully.
4.4 Role of National Human Rights Commission against Human
Rights Violations by Security Forces
The establishment o
the culmination of a number of national and international factors. The International
community has increasingly realized the importance of Human Rights implementation at
the national level and United Nations started addressing the issue of National Human
Rights Institutions (NHRIs) in 1946. The United Nations International Workshop on
42
CBI Bulletin, Vol.2, 1994,
p.75.
180
of guidelines that
Principles in 1992 and adopted by UN General Assembly in 1993. The Vienna World
Conference on human rights and its declaration in 1993 also encouraged the establishment
and strengthening of National Human Rights Institutions for effective realization of human
rights. The Vienna Declaration and Programme of Action adopted by the Vienna
Conference on Human Rights on June 25, 1993 recommended that every state ought to
provide an effective framework of machinery or institutions to provide remedies in case of
violation of human rights. The Paris Principles have become the focal point for
development of National Human Rights Commissions all over the world.43
The internal conflicts in Punjab, Jammu and Kashmir and the North-Eastern States
escalated in the 1980s and early 1990s were dealt by government with a heavy hand. The
media, civil society organizations and the general public increasingly expressed concern
about police and security forces actions in tackling insurgency and the culture of impunity
within the government basic human rights were being ignored in the name of national
security. The international community also continued to remind the government to fulfill its
international obligations to establish mechanisms for protecting human rights.
In this context, the Protection of Human Rights Act, 1993 was enacted, which enabled the
establishment of the National Human Rights Commission (NHRC) in Delhi and 18 State
Human Rights Commissions (SHRCs) around the country and Human Rights Courts
(HRCs) have been envisaged, and in some cases established, at the state level. Ever since
its establishment, the NHRC has been functioning quite effectively and vibrantly and
optimistically speaking, it has certainly helped curbing human rights violations in the
country to some extent. Besides, entertaining numerous complaints relating to human rights
violations and recommending appropriate actions against the violators, the NHRC has also
taken a number of steps in spreading human rights awareness and literacy amongst masses
43
Journal of the Institute of Human Rights, Vol.11-12, 2008-2009, p.41.
181
and thereby creating a human rights culture across the country.44
4.4.1 Composition, Selection and Removal of Members of NHRC.
NHRC is an autonomous institution consisting of:
1. (a) A chairperson who has been a Chief Justice of the Supreme Court;
(b) The member who is or has been a Judge of Supreme Court;
(c) One member who is or has been the Chief Justice of High Court;
(d) Two members to be appointed from amongst persons having knowledge of,
or practical experience in matters relating to Human Rights;
2. The Chairperson of the National Commission for Minorities, National Commission
for the Scheduled Castes, National Commission for the Scheduled Tribes and
National Commission for Women are deemed Members of the Commission.
3. There is a Secretary General who is the Chief Executive Officer of the Commission
and exercises such powers and discharges such functions, as delegated to him by
the Commission or Chairperson as the case may be.
The Power of selecting the Chairperson/members vests with a committee which
consists of:
The Prime Minister;
Speaker of the House of the People
Minister in-charge of the Ministry of Home Affairs in the Government of India;
Leader of the opposition in the House of the People;
Leader of opposition in the Council of States;
Deputy Chairman of the Council of States.
44
The Banaras Law Journal, Vol. 32-
33, No. 142, Jan. 2003-Dec.2004, p. 107.
182
The Chairperson/Member can be removed from his office by order of the President on the
ground of proved misbehaviour or incapacity after the Supreme Court, on reference being
made to it by the President, has on inquiry held in accordance with the procedure
prescribed in that behalf by the Supreme Court, reported that the Chairpers/Member ought
on any such ground be removed vide section 5 (1).
4.4.2 Functions and Powers of NHRC
Human rights violations in India stem as much from the abuse of power by public servants
as by dereliction of their public duties. Section 12 (a) of PHRA has conferred powers on
the commission to investigate complaints alleging violation of human rights, both, suo-
motu or on a petition, presented to it by a victim or any person on his behalf. No form or
court fee is prescribed for lodging a complaint with NHRCs. The complaint is free to use
any language of his choice. If the members are not familiar with the language of the
complaint, the same is translated at the cost of the commission. There is no specific bar
against entertaining complaints by NHRC before the other available remedies are
exhausted except those of which cognizance has already been taken by a state commission
or any other commission duly constituted by the Government of the State or the Union or
has been brought to its notice beyond one year of the commission of such violation. Access
to the commission has been thus, made open, easy and cheap.
Section 12 of the Act catalogues the functions of the commission. The functions include:
Intervene in any proceeding involving any allegation of violation of human rights pending
before a court with the approval of such court; Visit jails, hospitals, juvenile homes, mental
hospitals etc. to study the living conditions of the inmates; Review the law and procedure
for protection of human rights and make recommendations for their effective
implementation; Review the factors, including acts of terrorism that inhibit the enjoyment
of human rights and recommend appropriate remedial measures; Study treaties and other
international instruments or human rights and make recommendations for their effective
implementation; Undertake the promote research in the field of human rights; Spread
human rights literacy; Encourage the efforts of non-Governmental organizations and
183
institutions working in the field of human rights.45
To perform these functions comprehensive powers have been given to the Commission
while inquiring into complaints, it has all the powers of a Civil Court trying a suit under
Code of Civil Procedure, 1908. It includes power to summon and enforce attendance of
witnesses, discovery and production of any document, receiving evidence on affidavits,
calling for the production of any public record and examination of witness or documents. A
person is legally bound to furnish any information required by the commission and on
refusal prosecution can start against him under the penal code upon completion of an
inquiry, if the Commission finds violation of human rights, it may Make recommendations
to the concerned government or authority for initiation of proceedings for prosecution or
such other actions against the person responsible for violation of human rights; May
approach the Supreme Court or High Court for such directions orders or writs as that court
may deem necessary; Recommend to the concerned government or authority for the grant
of appropriate interim including monetary relief to the victims or his family members. The
concerned government or authority is bound to forward its comment including the action
taken or proposed within one month or such other times allowed by the Commission.46
4.4.3 Procedure with respect to Armed Forces
Section 19 of PHRA lays down that commission has no jurisdiction to inquire into
Military and Air Force including any other armed forces of the Union.
The Commission may on its own motion or receipt of complaint seek a report from the
Central Government and offer receipt of the report from the Central Government may
either not proceed with complaint or either case may be, makes recommendations to that
Government. The Government is obligated to inform the Commission on the action taken
on the recommendations within three months or an extended period of time as Commission
45
Kuldip Nayar, Rights Violations: Armed Forces and NHRC Scrutiny, Civil and Military Law
Journal, Vol. 40, No.1-2, 2004, p.42. 46
Kuldip Nayar, Rights Violations: Armed Forces and NHRC Scrutiny, Civil and Military Law
Journal, Vol. 40, No.1-2, 2004, p. 44.
184
may allow. The Commission may publish its report together with its recommendations
made to the Central Government and the action taken by the Governments.
4.4.4 National Human Rights Commission of India on Human Rights violation by
Armed Forces
The painful issue of how to protect human rights in times of terrorism and insurgency
confronted the National Human Rights Commissions within days of its establishment
(1993) with the tragic death of civilians in Bijbehara, in the state of J & K, in the course of
a firing by the Para-military force. The Commission took suo -muto cognizance of the
incident and after examining the reports, for which it had asked, concluded that excessive
force had been used. There has been a strict vigilance by the commission on such kinds of
violations. At times, there are allegations of human rights violations by the force who
conduct operations against terrorists and on receipt of such complaints, the Commission
calls for reports from concerned authorities. Army has issued strict guidelines to all ranks
on the observance of Human Rights while operating in such areas. It has also been reported
that since 1994, there have been 1318 allegations of Human Rights violations of which,
1269 have been investigated and 54 have been found to be true. 115 persons have been
punished. The National Human Rights Commission of India had long back recommended
the repeal of the AFSPA, and the enlightened world public opinion stands for the repeal. In
the last 40 years, the Commission has endeavored to curb violation of Human Rights as
well as to promote a culture of Human Rights in the country through various measures. The
Commission has been organizing training programmes and workshops on Human Rights
issues since its inception. The target groups include Police personnel, Armed forces
personnel, Judicial officers, Students, Public representatives, NGOs etc. The programmes
cover general Human Rights awareness as also some specific issues like rights of the
disadvantaged sections e.g. women, tribals, food security, right to education and health and
ut by the Commission has
proved highly useful in spreading Human Rights awareness.47
Other publications include
Handbook on Human Rights for Judicial Officers, Disability Manual, and Human Rights
47
Journal of National Human Rights Commission
of India, New Delhi, Vol.4, 2005, p.51.
185
Education (HRE) for beginners etc. The National Human Rights Commission requires a
broader mandate, greater independence and empowerment to be able to conduct its own
investigations and to enforce its decisions. The Protection of Human Rights Act (2006),
which was further, diluted its independence, will need to be changed. As declared by the
police officers shall respect and protect human dignity and uphold the human rights of all
persons as well it applies to the armed forces, they have to abide by the international
conventions against torture and other cruel punishments, principles of international
paramount in the functioning of the police and armed forces. Since time immemorial police
and again National Human Rights Commission has been show causing the officials of the
police as to why an action should not be taken against them. It is of utmost importance to
understand various human rights of the individuals, the situations in which violations are
likely if sufficient care is not exercised and the likely allegations or charges against personnel
of Armed Forces as well the Police.48
4.4.5 Problems with the Protection of Human Rights Act
Some genuine confusion arose from the fact that the Protection of Human Rights Act,
1993, the statute that created the Commission and bound its normal working, did not allow
are the main limitations in the Act that created obstacles:
1. Structural limitations
The structural limitations largely relate to the Protection of Human Rights Act, 1993 and
include:
Recommendations only: Commissions make recommendations to government, which
include: payment of compensation to the victim or to her/his family; disciplinary
48
Journal of National Human Rights Commission
of India, New Delhi, Vol.4, 2005, p. 55.
186
proceedings against delinquent officials; the registration of criminal cases against those
responsible; instructions to take particular action to protect human rights and/or to refrain
from actions that violate human rights. However, they can only make recommendations,
without the power to enforce decisions. This lack of authority to ensure compliance has
unfortunate consequences:
(a) Outright rejection of a recommendation: Governments often ignore the
recommendation completely or furnish a long bureaucratic discourse on how
compliance with the recommendation is not in the public interest.
(b) Partial compliance: An example of this is a failure to release the full amount of
compensation. Another example is to take action on only one recommendation
when there were actually dual recommendations, such as to pay compensation and
take disciplinary action.
(c) Delayed compliance: While recommendations usually obligate governments to take
action within 4-6 weeks, compliance is rare within the stipulated time and
sometimes action is so delayed that it becomes meaningless.
Composition Criteria: The Act requires that three of the five members of a human rights
commission must be former judges but does not specify whether these judges should have a
proven record of human rights activism or expertise or qualifications in the area. Regarding
the other
-retirement
destinations for judges, police officers and bureaucrats with political clout.49
Time - bar: Under the Act, human rights commissions cannot investigate an event if the
complaint was made more than one year after the incident. Therefore, a large number of
genuine grievances go unaddressed.
Bar on violations by Armed Forces: State human rights commissions cannot call for
information from the national government, which means that they are implicitly denied the
49
Kuldip Nayar, Rights Violations: Armed Forces and NHRC Scrutiny, Civil and Military Law
Journal, Vol. 40, No.1-2, 2004, p.46.
187
power to investigate armed forces under national control. Even the powers of the National
Human Rights Commission relating to violations of human rights by the armed forces have
been restricted to simply seeking a report from the Government, (without being allowed to
summons witnesses), and then issuing recommendations.
2. Practical limitations
Structural limitations apart, the work of human rights commissions is also being hampered
by cultures that exist within governmental spheres. Some of the practical difficulties faced
by human rights commissions include:
Non-filling of vacancies: Most human rights commissions are functioning with less than
the prescribed five Members. This limits the capacity of commissions to deal promptly
with complaints, especially as all are facing successive increases in the number of
complaints.
Non-availability of funds: Scarcity of resources or rather, resources not being used for
human rights related functions - is another big problem. Large chunks of the budget of
commissions go in office expenses and in maintaining their members leaving
disproportionately small amounts for other crucial areas such as research and rights
awareness programmes. Members of the National Human Rights Commission receive the
same conditions as Supreme Court Judges. Conditions of State Commission members are
commensurate with that of High Court Judges. This followed a report prepared by a high
level Advisory Committee headed by a former Chief Justice of India regarding
amendments to the Protection of Human Rights Act.50
Too many complaints: A common problem faced by most human rights commissions is
that they are deluged with complaints. In the year 2000-2001, the National Human Rights
Commission received over 70,000 complaints. State human rights commissions too, are
finding it difficult to address the increasing number of complaints.
50
Kuldip Nayar, Rights Violations: Armed Forces and NHRC Scrutiny, Civil and Military Law
Journal, Vol. 40, No.1-2, 2004, p. 52.
188
Bureaucratic style of functioning: As human rights commissions primarily draw their
staff from government departments - either on deputation or re-employment after
retirement - the internal atmosphere is usually just like any other government office. Strict
hierarchies are maintained, which often makes it difficult for complainants to obtain
documents or information about the status of their case. The presence of security guards,
armies of peons and office attendants creates barriers for ordinary people to personally
meet officials in regard to their complaint.51
4.4.6 Important Cases Decided By NHRC
Following are some of the important cases which have been taken up by the NHRC and
created a positive jurisprudence to prevent violations of Human Rights.
Firing by Security Forces in Bijbehara, Jammu & Kashmir
Within the month of its inception on 1 November 1993, the Commission, suo motu, took
cognizance of press reports about the death of about 60 persons in and around Bijbehara in
Jammu & Kashmir, as a result of firing by security forces operating in the areas and called
for reports from the Ministries of Defence and Home Affairs and also the Government of
J&K. After examining the findings of a magisterial inquiry by the State Government and
the Staff Court of Inquiry set up by the BSF, the commission asked the Government to
launch prosecution against 14 BSF personnel against whom disciplinary proceedings had
been launched. The Government accepted its recommendation and took action against the
offending BSF personnel, including a few officers.52
Alleged killings of civilians in Ukhrul town, Manipur, in crossfiring between 20
Assam Rifles and NSCN
On a complaint dated 9 June 1994, received from the Committee on Human Rights
(COHR), Manipur regarding the death of civilians caught in cross-fire between the 20
51
K.P. Saksena, , Gyan Publishing House, New
Delhi, 1999, p. 112. 52
K.P. Saksena, , Gyan Publishing House, New
Delhi, 1999, p.114.
189
Assam Rifles and elements of the NSCN, the Commission called for a report from the
Ministry of Defence. The COHR complaint alleged that the firing by the Assam Rifles had
been indiscriminate, that civilians had been detained illegally, that there had been acts of
physical torture and the looting of cash and valuables and the destruction of properties by
the Assam Rifles. It was further alleged that this was in retaliation, consequent to the killing
of two Assam Rifles Officers earlier by NSCN guerillas. But the Army Headquarters in
their report refuted all the allegations and alleged that NSCN insurgents had shot two
Assam Rifles Officers on duty, without any provocation. When the wounded officers were
being rushed to hospital, the insurgents fired at them again, as a result, the two officers
succumbed to their injuries and four others sustained injuries. The Quick Reaction Team of
the Assam Rifles cordoned off the area to search for the insurgents. Peace meetings were
arranged with prominent church leaders and others of Ukhrul town, along with the District
Collector and Superintendent of Police; these gestures were appreciated by all.
After considering the report of the Ministry of Defence (Army Headquarters) the
Commission was satisfied with the response of the armed forces, including the follow-up
action taken by them to restore peace. The Commission, however, recommended in its
proceedings of 9 February 1995, that compensation of Rs. 50,000/- be paid to the next of
kin of each of the 3 civilians killed in the cross-firing. The Ministry of Defence issued
instructions on 31 March 1995 for the payment of the compensation, as recommended by
the Commission.53
Alleged death of Muhammad Akbar Sheikh in armed forces custody, Baramulla
district, Jammu & Kashmir
Inhabitants of a cluster of villages in Barwah tehsil of Baramulla district, Jammu &
Kashmir, submitted a written complaint to the Commission alleging the death, in the
custody of the armed forces, of Muhammad Akbar Sheikh on 27 December 1993. It was
asserted that he was seized during an army crackdown in the area on that date and that his
dead body was handed over to the police in Baramulla on 29 December 1993. The
53
A.G Noorani, and South Asia Documentation Center, Challenges to Civil Rights Gurantees in India,
South Asia Documentation Centre, Oxford , University Press, New Delhi, 2012, p. 256.
190
commission called for reports from the Defence and Home Ministries. The reply of the
Defence Ministry showed that Akbar Sheikh died due to exhaustion as his health was not
normal and he was assisting security forces for 9 hours continuously. The Commission held
it was the obligation of those who wanted to utilize his services for the purpose of the
search, to take proper care of him. It was evident that exhaustion in this case was the result
of the strain put upon him by the search party. Though the case was not one of custodial
death, the situation was more or less akin to it. The Commission directed the Ministry of
Defence to pay Rs. 50,000/- as compensation to the legal heirs of the deceased. Accepting
the recommendations of the Commission, the Ministry of Defence issued a sanction order
on 2 December 1994 for the payment of the compensation. The Commission took note of
this on 22 December 1994.54
Death of Kheshiho Sumi in the custody of the armed forces (Assam Rifles) in
Nagaland
The Commission initiated a proceeding on the basis of a report received by it from the
Superintendent of Police, Dimapur, Nagaland indicating the custodial death of Kheshino
Sumi . Upon notice, the Ministry of Defence reported to the Commission that Kheshiho
Sumi was arrested on 12 November 1994 from Purana Bazar as he was observed to be
moving around in a suspicious manner. Two days later, while he was reportedly being
taken by the Assam Rifles on a mission to uncover the hide out of insurgents, it was stated
that Kheshiho jumped from a running vehicle with a view to escaping and was injured in
the process. After being found in a ditch, the report added that Kheshiho was taken to the
civil hospital, Dimapur but that the doctor on emergency duty declared him dead.
According to the defence authorities, the salient fact which merged from the court of
enquiry proceedings was that Kheshiho was actively involved in the activities of the
outlawed National Socialist Council of Nagaland and that he was neither maltreated nor
beaten after his apprehension. Upon perusing the report, the Commission noted that, under
the Armed Forces (Special Powers Act) Section 5 however requires that any person
arrested and taken into custody under the Act shall be made over to the officer in charge of
54
A.G Noorani, and South Asia Documentation Center, Challenges to Civil Rights Gurantees in India,
South Asia Documentation Centre, Oxford , University Press, New Delhi, 2012, p. 270.
191
the nearest police station with the least possible delay, together with a report of the
circumstances occasioning the arrest. The Commission held that the act of keeping
Kheshiho in their control after arrest was contrary to the provisions of Section 5 of the
Armed Forces (Special Powers) Act 1958 (Act 28 of 1959). The Commission noted that the
obligation to make over the arrested person to the civil police without delay itself ruled out
the legal authority of the investigation by the Assam Rifles. The Commission, therefore,
observed that the attempt to engage the deceased in the search of hideouts of insurgents for
two days following his arrest was an unauthorized act. However, the Commission pointed
out that this case involved a violation of law and therefore, recommended compensation of
Rs. 100,000/- to the next of kin of Kheshiho Sumi. The Commission has received a report
from the Ministry of Defence indicating that its recommendation has been complied with.55
Jawan Rapes mentally disturbed girl in public Assam
The Commission took suo motu cognizance of a news item published in "The Statesman"
dated 20 April 1999 entitled "Jawan rapes mentally disturbed girl in public" and directed
that a report be handed over to the Secretary, Ministry of Defence in this matter. The report
from the Ministry of Defence confirmed the allegation that one Ajit Singh had raped ABC
(name withheld to protect identity), a 15 year old mentally deranged girl and that an FIR
was lodged by a civilian. The girl was examined medically and the Medical Officer had
confirmed the offence. Ajit Singh was arrested and placed in military custody. Summary
General Court Martial tried Ajit Singh and awarded him 8 years rigorous imprisonment and
dismissal from service.
The Commission while taking note of the action taken by the Military authorities against
the accused, expressed the view that the victim, ABC, a mentally disturbed girl also needed
to be compensated. It accordingly directed the District Magistrate, Kokrajhar to pay a sum
of Rs.25,000/- to the parents of ABC by way of immedite interim relief. The Commission
has received a compliance report with regard to the payment of compensation.56
55
Social Action, Oct.-Dec., 2007,
p. 385. 56
Case No.27/3/1999-2000
192
Procedure with respect to complaints against Armed Forces: Disappearance of
Mohammed Tayab Ali, who was last seen in the company of para-military forces
The Commission received a complaint from Smt. Mina Khatoon, resident of District
Imphal (East), which was referred to it by the Manipur State Human Rights Commission,
alleging the disappearance of her husband Mohammed Tayab Ali on 25 July 1999 after he
was taken away to the headquarters of the 17 Assam Rifles Battalion. He had not been seen
thereafter.
The Commission considered the report submitted by the Ministry of Defence and, in the
light of the evidence on record, including the deposition of witnesses, who stated that they
had seen Mohammed Tayab Ali being picked-up by security men, held that the security
forces were liable for the disappearance of Mohammed Tayab Ali. The Commission
accordingly awarded a sum of Rs.3 lakhs as immediate interim relief, u/s 18(3) of the Act,
to the complainant. A compliance report is awaited.57
Mass Cremation by Punjab Police
The follow-up of this case has been continuously reported in the earlier Annual Reports of
NHRC. The Supreme Court of India vide its order dated 12 December 1996 had remitted
the aforementioned case to the NHRC for facilitating identification of 2,097 dead bodies
cremated by Punjab Police in the three districts of Amritsar, Majitha and Taran Taran
between 1984 and 1994. Till 31 March 2008, on account of the efforts made by the NHRC
in association with the Government of Punjab, a total of 1,388 deceased persons could be
identified. An amount of Rs. 25, 75, 25,000 was also recommended by the NHRC for
payment to the next of kith and kin of the deceased. For identification of the remaining 657
unidentified bodies (excluding duplicate names), the NHRC vide its proceedings dated 17
June 2008, constituted a Committee headed by Shri N.S. Kang, Secretary to the
Government of Punjab along with two other members. The Report of the Committee is
57
Case No. 32/14/1999-2000
193
awaited. The matter is under consideration of the NHRC.58
Illegal Detention and Torture by CRPF Personnel in Thinguchingjin, Manipur
The NHRC had recommended to the Union Ministry of Home Affairs, Government of
India to pay an amount of Rs. 10,000 each to the six victims for the injuries caused to them
by the CRPF personnel. The directions of the Commission have been complied with and
the case closed.59
Abduction and Killing of Three Civilians, Mohammed Khadam, Mohammed Rayaz
and Mohammed Rashid by Army Personnel in Poonch, Jammu & Kashmir
The Commission in this case recommended to the Government of India to pay Rs. 2,00,000
each as monetary relief to the next of kin of the three deceased. The Ministry of Defence,
Government of India has agreed to pay the monetary relief. The proof of payment from the
Government of India is awaited by the NHRC.60
4.5 Conclusion
In any civil society, observance of human rights is essential by each citizen, more so by the
law enforcing agencies, who are themselves responsible for maintaining law and order.
Consequently, any act performed by the security forces in excess of what has been
authorised by law becomes illegal. The cause and call of human rights is so precious for the
humanity that it be not comprised under any amount or degree of provocation. This
requires not only wide awareness of human rights amongst members of security forces but
more than that it requires promotion and inculcation of human rights attitudes and
sensitivities in them.
58
Case No. 1/97/NHRC 59
Case No.38/14/1999-2000-AF 60
Case No.179/9/2002-2003-AD
194
As far as the dissemination aspect is concerned, all the security forces have made due
arrangements for imparting instructions on Human Rights to their personnel. However, the
assemination of Human Rights as reflected by their actions in reality is not uniformly the
same across the three categories of security Forces. The evidence shows that it is the best
amongst the defence forces, followed by the Central Para-military forces and the worst
amongst the state police forces. The rather poor awareness of Human Rights amongst the
Indian Police forces is a matter of serious concern.
A consideration of the Special Enactments for the security forces and their deployment in
aid to civil administration reveals that the Army's role in controlling riots and other
emergency situations is extremely restrictive in nature and depends entirely on the
cooperation and willingness of the administration to employ the Army to best use. They
must perform their duty to the nation to fight and triumph over terrorism. They must
observe international standards of Human Rights and discharge their duty with full respect
for the laws of the land and the rights of all the people. The rights of the victims of
terrorism and armed militancy should not be neglected but they should be assisted by all
appropriated means. The Ten Commandments adopted by the armed forces is the assurance
of needed sensitivity at the command level. The need is for its percolation throughout at all
levels. It is significant that human rights awareness is promoted not only by various
training courses at the level of pre-commission training, young officers' courses, junior
command courses, but also by situational courses at the units which are assigned the task to
deal with counter-insurgency situations. These and other efforts have been very beneficial
and have been largely responsible for improvement in the sensitivity of armed forces of
human rights issues and we welcome it. The journey to human rights is too long and too
arduous but worth continuing till we reach the destination.61
The appointment of a National Human Rights Commission by the government of India, in
the year of 1993 has been a significant step in the direction. The Commission suffers from
many inherent weaknesses in the jurisdictional as well as procedural/ prosecutorial
61
Justice Rajinder Sachar, Human Rights Perspective and Challenges, Gyan Publishing House, New
Delhi, 2004, p. 107.
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perspectives. Therefore the amendment is required in section 19 of Protection Of Human
Rights Act, 1993 so that NHRC can enquire into allegation against the Army and
paramilitary forces. The NHRC and SHRC must be provided with sufficient investigative
staff to inquire into such complaints. All such NHRC and SHRC reports and
recommendations should be binding on the concerned governments and forces, subject
only to judicial review.
There is need to rationalise the deployment of security forces. This should be task oriented
and to be determined by the professionals. There is a tendency to flood an area with
security forces without a clear-cut objective. Such deployment create more problems and
give very little operational advantage. The emphasis should shift to quality rather than on
quantity. Well-rested , well trained and well-briefed personnel in small numbers in waves
at short intervals will achieve more results than a stagnating large body of men located in
an area with no specific work on hand. Inactivity will breed sloth which in due course will
create inefficiency. When the need arises, these forces will be found to perform below par.
If the operations of security forces in disturbed areas are nationalised on these lines 'Human
Rights' implementation will take care of itself automatically.
