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11 June, 2013

Impunity in age of democracy

BRP Bhaskar
Gulf Today

Is impunity a necessary or desirable component of governance? The Indian government asserts it is. The impunity question has surfaced again in the wake of the report of Christof Heyns, United Nations Special Rapporteur on extrajudicial and summary or arbitrary executions. He has called for an end to the impunity the country’s armed forces enjoy but the government is unwilling to take a fresh look at the colonial legacy.

Heyns was in India last year and visited several states, including Jammu and Kashmir, and talked to officials as well as civil society representatives. In his report, he noted that there has been a drop in unlawful killings in recent years but suggested that the government appoint a credible commission to investigate allegations of violations of the right to life and to work out a plan of action to eradicate extrajudicial executions altogether.

He identified impunity as the central problem of human rights violations and asked India to repeal the Armed Forces Special Powers Act, which protects security personnel who commit illegal acts during anti-insurgency operations, or at least limit its use.

Enacted in 1958 to deal with Naga insurgency in the tribal northeastern region, the AFSPA is a new avatar of the law promulgated by the British in 1942 when Gandhi launched his last campaign against them. Japanese forces were advancing westward at the time.

The AFSPA is region-specific. It applies only in “disturbed areas” declared as such by the state governments on account of insurgency. The law limits the validity of such a declaration to six months but there is nothing to prevent indefinite retention of the “disturbed” tag by re-issuing it.

Manipur was the first state to come under the AFSPA. The law was subsequently extended to the other northeastern states. It was extended to parts of Jammu and Kashmir in 1990 when the state was under governor’s rule.

According to the Civial Society Coalition on Human Rights in Manipur, between 1979 and May last year 1,528 people, including 31 women and 98 children, had been killed in fake encounters in the state. Irom Sharmila, a young poet, has been on an indefinite fast demanding withdrawal of the AFSPA for more than 12 years. She is kept alive through forced nasal feeding in prison and has been repeatedly prosecuted on charges of attempted suicide.

Protests against the AFSPA, led by women, swept Manipur in 2004 after security personnel picked up a woman, Manorama Devi, from her house and raped and killed her. Rashida Manjoo, UN Special Rapporteur on Violence against Women, who was in India recently, broke down when Manorama Devi’s mother narrated to her the events of the period.

Heyns’s report came up before the UN Human Rights Council in Geneva on May 22, the 55th anniversary of the AFSPA. Neena Ningombam, Secretary of the Extrajudicial Execution Victim Families’ Association of Manipur, made a presentation to the Council on behalf of her own association as well as the Hong Kong-based Asian Legal Resources Centre.

The Indian government’s response was a vigorous defence of impunity, citing its responsibility to protect the people. “Governments have to be realistic and effective in fulfilling their responsibility of providing protection,” it said.

It claimed that the country’s active and watchful judiciary was upholding the fundamental rights of the citizens, including the right to life. It had vainly advanced the same argument more than two decades ago to deny the demand for setting up human rights commissions at the national and state levels.

While the judiciary has intervened effectively in many instances of rights violations, there have also been occasions when it failed to do so. During the Emergency of 1975-77 the Supreme Court had said it could not intervene as fundamental rights had been suspended. More recently, in the case of alleged terrorist Afzal Guru it unwittingly acknowledged that he was awarded the capital sentence to satisfy the public conscience.

Last week Communist-ruled Tripura state decided to limit the area of operation of the AFSPA in view of the improvement in the ground situation. Jammu and Kashmir Chief Minister Omar Abdullah wants its withdrawal on the same ground but the Centre is not willing to oblige.

India’s constitution upholds the principle of civilian supremacy over the military but the government has virtually surrendered to the armed forces the right to decide on the operation of the AFSPA.--Gulf Today, Sharjah, June 11, 2013.

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