UN Special Rapporteur releases his provisional on India
By A Staff Reporter
IMPHAL, March 30: “A law such as AFSPA has no role to play in a democracy and should be scrapped. The repeal of this law will not only bring domestic law more in line with international standards, but also send out a powerful message that instead of a military approach the government is committed to respect for the right to life of all people of the country” UN Special Rapporteur on extrajudicial, summary or arbitrary executions Prof Christof Heyns said in his provisional conclusion today.
Prof Christof Heyns who has been in the country since March 19 ended his official mission today and released a press statement on his provisional conclusion of his official India mission.
In the statement issued today the UN Special Rapporteur has stated “At the invitation of the Government of India, I conducted an official visit to this country from 19 to 30 March 2012.1 travelled to New Delhi, as well as to five states, namely: Gujarat; Kerala; Jammu and Kashmir, where I had meetings in the cities of Jammu and Srinagar; Assam; and West Bengal”.
He further added, “My mission focused in particular on the right to life in the context of the use of force by the police and the armed forces, and on the possible impact on the right to life of cultural practices”.
In his conclusion, the UN Special Rapporteur had also touched several main issues pertaining to Manipur.
Prof Christof Heyns had visited the North East region of India and held a consultation with civil society in Guwahati on March 28 at Hotel Brahmaputra Ashok.
Starting off his provisional conclusion, he stated, “India faces many challenges to the realisation of human rights, including movements aimed at separation or greater local autonomy, Maoist or Naxalite, insurgency, organised crime, and communal organisations opposed to secularism, plurality and equality. India accommodates a huge diversity in terms of religion, languages and culture, largely in a remarkably peaceful way. The state structure is federal in nature”.
Touching upon the issue of AFSPA, he stated, “The Armed Forces are deployed in so-called ‘disturbed areas’ in the North East and in Jammu and Kashmir”.
“The Armed Forces (Special Powers) Art (AFSPA) in effect allows the state to override rights in the ‘disturbed areas’ in a much more intrusive way than would be the case under a state of emergency, since the right to life is in effect suspended, and this is done without the safeguards applicable to states of emergency”.
“AFSPA – continuously in force since 1958 (different states have their own versions as well) in the North East and since 1990 in Jammu and Kashmir – has become a symbol of excessive state power”.
“I have heard extensive evidence of action taken under this law that resulted in innocent lives being lost, in Jammu and Kashmir and in Assam, where witnesses from neighbouring states also assembled. This law was described to me as ‘hated’ and a member of a state human rights commission called it ‘draconian’” he stated.
“The government-appointed Jeevan Reddy Committee and the Administrative Reform Commission have both called for its repeat; as have political leaders of states where the Act applies. The NHRC told me during our meeting that they are in favour of its repeal and that they have commented in their submission to the 2012 UPR that AFSPA often leads to the violation of human rights. It is therefore difficult to understand how the Supreme Court, which has been so progressive in other areas, also concerning the right to life, could have ruled in 1997 that AFSPA did not violate the Constitution – although they tried, seemingly with little success, to mitigate its Impact by issuing guidelines on how it is to be implemented” the statement added.
“AFSPA clearly violates International Law. A number of UN treaty bodies have pronounced it to be in violation of International Law, namely HRC (1997}, CEDAW (2007), CERD (2007) and CESCR (2008). My predecessor has also called for its repeal.
The widespread deployment of the military creates an environment in which the exception becomes the rule, and the use of lethal force is seen as the primary response to conflict with a concomitant permissive approach in respect of the use of lethal force. This is also difficult to reconcile in the long run with India’s insistence that it is not engaged in armed conflict” it added.
The Special Rapporteur further stated in his provisional conclusion “Accountability is circumvented by invoking AFSPA’s requirement of obtaining prior sanction from the Central government before any civil prosecutions can be initiated against armed forces personnel. The information received through Right to Information applications, shows that this immunity provision effectively blocks any prosecution of members of the armed forces. The Centre has for example never granted sanction for civil prosecution of a member of the armed forces in Jammu and Kashmir”.
The UN Special Rapporteur while addressing the systematic challenges had also stated, “Many of the people I interviewed whose family had been killed, pointed out that the alleged perpetrators, belonging to the police or the armed forces, have been awarded out of turn promotions, or have in other ways been rewarded.”
“While in some cases of custodial death and death due to excessive use of force compensation is paid by the state, criminal investigation and prosecution against perpetrators is rarely initiated. Consequently few if any are punished for violating the right to life. This is also a manifestation of a military as opposed to a rights based approached. It blunts the deterrent effect of the law and encourages impunity”.
In his conclusion, Prof Heyns has also stated, “Impunity for extrajudicial executions is central problem. This gives perpetrators a free reign, and leaves victims in a situation where they either are left helpless, or have to retaliate. The obstacles to accountability that are in place-in particular the need for prior sanction of prosecutions-should be removed
