The 14 June 2018 report of the Office of the UN High Commissioner for Human Rights (OHCHR) has given rise to fears about the situation of human rights in India, particularly in the state of J&K. The report undermines the United Nations-led consensus on zero tolerance against terrorism and fails to see the actions taken by India in this context. Some of the issues highlighted in the report and the factual position are as follows.
Para 44: Section 7 of the AFSPA gives security forces virtual immunity against prosecution for any human rights violation; further in the nearly 28 years that the law has been in force, not a single prosecution of armed forces personnel has been granted by the Central Government. Sanctions have been accorded in a few cases.
The law under which military personnel may be prosecuted in India is more stringent than those in a large number of democracies.
Para 45: Section 4 of the AFSPA allows army personnel to use lethal force not only in self-defence but also against any person contravening laws or orders “prohibiting the assembly of five or more persons”, and this contravenes several international standards on the use of force and related principles of proportionality and necessity.
Such powers have been granted to the armed forces in Australia, Belgium, the UK, the USA and elsewhere. In India, the instructions issued to military commanders are explicit and comprehensive. They provide that in case commanders decide to open fire, they must: (a) give warning in the local language that the fire will be effective; (b) attract attention before firing by bugle or other means; (c) control fire by issuing personal orders on both the ‘number of rounds’ to be fired and the ‘object to be aimed’ at; (d) cease firing immediately once the object has been attained; (e) take immediate steps to secure the wounded; and (f) ensure a high standard of discipline. These rules of engagement have approval of the Supreme Court.
Para 47: In 2005, the government had appointed a committee to review the AFSPA. The committee reported that the AFSPA had become “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness”.
The findings of the committee have been selectively quoted in the UN report, which failed to mention other parts of the report:“...though an overwhelming majority of the citizen groups and individuals pleaded for the repeal of the Act, they were firmly of the view at the same time that the Army should remain to fight the insurgents.”
Para 47: A committee established by the Central Government in 2012 to review laws against sexual violence, recommended that the AFSPA be amended so that cases of sexual violence by members of the armed forces could be brought under the purview of ordinary criminal law.
Though the recommendation of the committee was outside its mandate, the 2013 amendment to the India Penal Code provides that if a member of the armed forces commits rape in a deployed area, he shall be awarded a minimum punishment of RI for 10 years, which may be extended to imprisonment for life, and shall also be liable to fine.
Para 52: There are slight variations in the justice systems governing each of the central police forces (CPF) and that “to some degree the processes are less defined, providing for greater ambiguity in the administration of justice within these security forces”.
The legal system of the CPF is well defined and contained in Acts and Rules. There is no ambiguity in the system.
Para 54: The Indian authorities have insisted that allegations of human rights violations by the security forces are appropriately handled by the military justice system. However, according to the Special Rapporteur on Independence of Judges and Lawyers, military courts do not meet international fair trial standards and thus are not suitable to try offences committed against civilians.
This is a general comment applicable to military legal systems the world over and not exclusively to the Indian military justice system.
Para 55: In July 2017, the Armed Forces Tribunal suspended the life sentences and granted bail to five Indian Army personnel who had been convicted by a court-martial for extrajudicial killings. According to report, the Tribunal’s decision has not been made public.
The Armed Forces Tribunal is a judicial body, functioning independently under the supervision of the Supreme Court. The action of the Tribunal is within the power granted to it under Section 15 of the Act.
Para 72: The report mentions the Army Chief’s warning to protesters that “tough action” would be taken against anyone intervening in security operations.
However, it does not mention the social and developmental activities undertaken by the armed forces in J&K in the last few decades.
There is no doubt that the non-state armed groups (NSAGs) in J&K have committed a range of crimes, including kidnappings, killing of civilians and sexual violence. There is ample evidence to show that these NSAGs have been trained and armed by Pakistan. However, the UN report fails to take cognizance of this. Para 29 of the report states that since it was not possible to directly verify allegations, the findings were arrived at using a “reasonable grounds” standard of proof. One does not expect a report by a UN body to rely on allegations that are not supported by evidence.