Era of army impunity ends

BRP Bhaskar
Gulf Today

The immunity from prosecution which security personnel deployed in insurgency-hit areas have enjoyed under the Armed Forces Special Powers Act (AFSPA) may become a thing of the past with the Supreme Court striking a decisive blow for freedom and accountability.

AFSPA, which is in force in parts of Jammu and Kashmir and the predominantly tribal states of the northeast, stipulates that there can be no legal proceedings against personnel acting under it. There has been a plethora of allegations of human rights violations by security forces and these have led to violent protests on several states.

In an 85-page judgment, delivered last Friday, a Supreme Court bench said every death caused by the armed forces should be thoroughly enquired into. “It does not matter whether the victim was a common person or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both,” it declared.

Rejecting the government’s claim that denial of immunity would demoralise security personnel, the court said there was no concept of absolute immunity for an army person who committed a crime.

Every person who violated prohibitory orders in a disturbed area was not an enemy, it pointed out. Even if the person was an enemy there should be an enquiry to ascertain if excessive or retaliatory force had been used. It also drew a distinction between use of force in an operation and in other situations.

It entrusted the National Human Rights Commission with the responsibility of ordering enquiry into allegations against the security forces, and named the criminal investigation department of the police as the agency to conduct the enquiry.

AFSPA’s roots go back to the colonial era. The different versions of the law in force in various states are all based on the ordinance the British promulgated in 1942 to deal with the Quit India agitation which the Congress party launched even as the Indian National Army, formed by Subhas Chandra Bose to fight alongside Japan, was moving towards the eastern border from Singapore.

The ordinance was allowed to lapse after World War II. A few years after the country gained freedom it was resurrected to grant immunity to army and paramilitary personnel called out to deal with Naga insurgency in the eastern state of Assam. It is now in force, under the name AFSPA, in Nagaland, Manipur and Arunachal Pradesh in the northeast and in J and K.

Ordinarily, AFSPA is applicable only in areas notified as “disturbed”. Most versions of the relevant law limit the “disturbed area” notification’s validity to six months. However, some areas have been kept under AFSPA continuously for half a century by repeatedly reissuing the notification.

J and K invoked AFSPA following a spurt in insurgency in 1992. The state’s Disturbed Areas Act lapsed in 1998 but AFSPA continues to this day. The National Conference government headed by Omar Abdullah wanted AFSPA to be withdrawn but the Centre did not oblige.

The People’s Democratic Party which heads the state government now also favours withdrawal of AFSPA, but the Bharatiya Janata Party, which heads the Central government and is PDP’s junior partner in the ruling coalition in the state, is a vocal supporter of the law.

The day the Supreme Court verdict on AFSPA came the security agencies announced the killing of 22-year-old Burhan Wani, said to be a home-grown Hizbul Mujahideen commander, and two associates in an encounter. At least 20 persons were killed and 200 injured as security forces fired on youths protesting against his killing.

The worst part of AFSPA is the security forces’ reluctance to part with it and the government’s readiness to honour their wishes. People in many states have been seeking the withdrawal of AFSPA for decades. Irom Sharmila, a young woman poet of Manipur, who began an indefinite fast in November 2000 demanding repeal of AFPSA and is kept alive through nasal feeding in a hospital, has become a global icon of the human rights movement.

The state of Punjab and the Union Territory of Chandigarh came under AFSPA in 1983 in the wake of the secessionist Khalistan movement. Under Congress and Akali Dal governments Punjab retained it until 1997. Chandigarh held on to it until the Punjab and Haryana High Court struck it down in 2012. Tripura’s Communist Party of India (Marxist) government lived with AFSPA for 14 years.

The apex court verdict has formally ended the era of army impunity. But more struggles in legal and other forums may be needed to make it a reality.--Gulf Today, July 12, 2016.

Beyond issue of security

BRP Bhaskar
Gulf Today

As India stepped into its 65th year as a sovereign, democratic republic on Sunday, with the traditional display of military hardware, some relics of the colonial era were still haunting it. Among them is a notorious law which shields men in uniform guilty of atrocities against civilians.

The law was introduced by the British during World War II to crush the Quit India movement of 1942, the last major campaign of the freedom struggle. It permitted security personnel to conduct raids and make arrests without warrant and granted them immunity from prosecution for acts committed in the course of operations.

Free India’s government re-enacted the law as the Armed Forces Special Powers Act (AFSPA) in 1948 to protect security personnel dealing with post-partition riots, and extended it annually till 1957.

A year later the law was revived to deal with tribal insurgency in Assam and Manipur. It is applicable only in an area declared as “disturbed”. Initially the power to declare an area as “disturbed” vested in the state government but later the central government was also empowered to do so.

AFSPA has now been in force in the northeastern states continuously for more than a half-century and in Jammu and Kashmir for close to a quarter-century. Punjab, where it was introduced in 1983 in the wake of the Khalistan movement, was freed from its grip in 1997.

The people of Manipur demanded withdrawal of AFSPA in 2000 after personnel of the Assam Rifles, a paramilitary force which traces its origin to 1835, fired on an unarmed crowd at Malom, near Imphal, killing 10 persons, including a 62-year-old woman and an 18-year-old National Bravery Award winner.

The Centre’s tough stance forced the state government to abandon its plan to withdraw AFSPA. Irom Sharmila, a young poet, began an indefinite fast demanding its withdrawal. More than 13 years later, the fast is still on. She is kept alive through forced nasal feeding in custody.

After five young men were killed in an alleged encounter at Pathribal, near Anantag, in 2000 the Jammu and Kashmir government asked the Centre to withdraw AFSPA or at least curtail its operation.

The Army claimed those killed were mercenaries responsible for a massacre. However, the Central Bureau of Investigation, which probed the incident, concluded it was a case of cold-blooded murder. It charge-sheeted five officers, including a brigadier, a lieutenant colonel and two majors, in a criminal court.

In 2004, the Centre, taking note of the Manipur agitation, appointed a five-member commission, headed by former Supreme Court judge BP Jeevan Reddy, to review the working of AFSPA. Prime Minister Manmohan Singh said later the law would be amended to make it “humane” in keeping with the commission’s recommendations. However, there was no action.

The Executive’s helplessness in the face of the Army’s obdurate stand was revealed when Finance Minister P Chidambaram, who was earlier in charge of the Home Ministry, said, “If the Army takes a very strong stand against any dilution or any amendment to AFSPA, it is difficult for a civil government to move forward.”

The Judiciary stepped aside when the Pathribal encounter issue was raised before it. The Supreme Court asked the Army to decide whether the indicted officers should be tried by an army court or the regular criminal court. The Army, which opted for the court martial route, closed the case last week saying the recorded evidence did not establish any case against the officers.

The Army’s self-serving finding, arrived at in closed-door proceedings, has raised doubts about the ability of the system to deal with offenders in uniform.

Chief of Army Staff Gen Bikram Singh recently acknowledged that terrorist infiltration into Kashmir dropped from 1,852 in 2001 to 90 in 2013. However, he said, AFSPA cannot be withdrawn as it is a strategic imperative.

The AFSPA issue is not one of national security alone. It also has a bearing on rule of law. Both in Kashmir and in the Northeast, security personnel have attracted charges of rape. The Justice JS Verma Commission, which looked into the issue of women’s safety a year ago, suggested that armed forces personnel accused of sexual offences should not be given AFSPA protection. The Centre ignored the suggestion.

The National Human Rights Commission and the Supreme Court appointed Justice Santosh Hegde commission, which separately studied many alleged encounter deaths in Manipur, reported that all the cases they examined were fake encounters. Such widespread abuse of power will only make resolution of political problems difficult. -- Gulf Today, Sharjah, January 28, 2014.

Extra-judicial killings: frightening administrative failure in Manipur

The following is a statement issued by the Asian Human Rights Commission, Hong Kong:

The Commission of Inquiry, constituted by the Supreme Court of India, in Writ Petition (Criminal) 129 of 2012 [Extra Judicial Execution Victims Families' Association and Another (petitioners) Against Union of India and Others (respondents)] and Writ Petition (Civil) 445 of 2012 [Suresh Singh (petitioner) Against Union of India and Others (respondents)] has filed its report to the Court on 30 March 2012. The investigation by the Commission, chaired by Justice N. Santhosh Hegde (retired Judge to Supreme Court and former Solicitor General of India), having Mr. J. M. Lyngdoh (former Chief Election Commissioner of India) and Dr. Ajai Kumar Singh (former Director General of Police, Karnataka state) as members, has categorically shown the true face of law enforcement in Manipur. The Commission's report, a summary of which is reproduced below, confirms the ugly reality of impunity behind extra-judicial executions in Manipur.

In the seven cases that were inquired into, the commission has found:

(i) that in all cases the security forces have blatantly violated the law and procedure and have engaged in cold-blooded murder;

(ii) the use of disproportionate force against the victims by firing at them even at close range, repeatedly;

(iii) the negation of the legal procedures, even by administrative officers like the Executive Magistrates;

(iv) the open and uncontrolled possibility for wanton use of authority, including fabrication of or destruction or tampering of the evidence and the crime scene; and

(v) the abysmal failure of the draconian law, the Armed Forces (Special Powers) Act, 1958 (AFSPA), coupled with the perpetual imposition of emergency under Section 144 of the Criminal Procedure Code, 1973, that has perpetuated loss of faith of the people in their government and institutions and has in fact precipitated only more loss of life and violence in the state.

The Commission, however, has not dealt with issues like psychological trauma that grips the population, when scores of people have been shot dead often in full public view by the state, constitutionally bound to provide safety and security to every citizen. Though the subject does not fall sensu stricto within the remit of the Commission, per the order from the Supreme Court, it is however a subject that needs to be understood and addressed in detail should there be any discussion regarding the possibility of finding solutions to the problems of the people in Manipur arising out of state-sponsored terror. The report also misses a vital issue, the gender component, i.e. the problems young widows and mothers face when a husband or son is shot dead by the state and accused a terrorist. That the Commission itself is the result of cases filed, including those by young widows in Manipur; it is an issue that warrants close and careful attention.

The Asian Human Rights Commission (AHRC) respects the effort of the Supreme Court of India, which has clinically exposed the flaws in state policy with regard to insurgency in Manipur. The AHRC also wishes to express its appreciation of the Justice N. Santhosh Hegde Commission for undertaking the enormous and complicated task of revealing the truth behind 'executive elimination' in Manipur. Both cases are pending at the Supreme Court, and it is expected that the Court will deliver its verdict ordering appropriate relief in the case so that Manipur and its people are no more at the mercy of gun-wielding security force officers, who shoot to kill without rhyme or reason, with impunity.

Extracts from the Commission's findings:

1. On the victims: "I did not know the identity of the deceased even after he was killed. I came to know the name of the deceased after the same was published in a newspaper." This is a witness statement in the inquiry, tendered by a state officer. The officer testified further: "… even if I had not made any enquiry I knew that he was a member of KCP."

The Commission has reported that there is no credible, organised, or satisfactory process through which the security agencies verify the information they receive about a suspect. In this particular case, concerning the murder of Mr. Akoijam Priyobrata, the officer deposed that he would assert that the victim is a member of the KCP since he was found in a place where members of the KCP allegedly reside.

This gross absence of reason or intelligence, against a person that the security agencies allege of terrorist affinities, underlines the common knowledge in Manipur that in a very high number of cases, the agencies shoot to kill persons for reasons ranging from mere suspicion to extortion and later label the incident as 'a terrorist killed in encounter.' This pattern of accusation of victims of murder finds support at the highest levels of state administration in Manipur, including by its Chief Minister, Mr. Okram Ibobi Singh.

Of the cases that the Commission has investigated, not a single case suggests that the murdered victim was, in fact, engaged in terrorist activities. Even high-ranking officers do not have information about the persons executed by their subordinates. In the case of Mr. Elangbam Kiranjith Singh, an officer deposed, "I was not told the name of the person who was to be encountered in the information given by Major Badoni." What is equally alarming is the fact that 'encountered' is a euphemism, used across India and in South Asia generally, for executive elimination. This illuminates the shocking reality that high-ranking officers issue orders to their subordinates to kill persons. Concepts like command responsibility have no meaning in such circumstances when the command itself instigates the crime.

Neither the Government of Manipur nor that of the Union have any data concerning the number of civilians killed or injured so far in Manipur in anti-terrorist operations. When the Commission ordered the government to provide such information, the government responded that there is no official record of such information. This suggests deep culpability of both the Union Government and that of the Government of Manipur in shocking events reported from Manipur. Such absence of information further indicates that the government has no policy in place to solve the Manipur crisis even today and is grossly irresponsible with regard to its constitutional mandate.

2. Concerning procedures: The Commission's findings clearly suggest that the security forces operating in Manipur negate all procedural mandates, including the various directives issued by the Supreme Court of India and the central command of units like the Assam Rifles. The instructions from the Court, first iterated in the D. K. Basu case, and further incorporated into the Criminal Procedure Code, 1973 by way of a substantive amendment, are not observed at all. The Dos and Don'ts, spelt out in the Naga People's case by the Court and further transcribed as an operational manual by the Assam Rifles, have been violated, in each case investigated by the Commission. In fact, some of the high-ranking officers who deposed before the Commission even expressed complete absence of knowledge on this.

In the Naga People's case, the Court directed that Section 4 of the AFSPA is no carte blanche for the exercise of unlimited power. Considered along with other facts and in interpretation of the law, the ratio decidendi concerning Section 4 was that the power conferred by the section should be used with exceptional caution, and that the security forces must use only the minimum force necessary to undertake the job at hand. Yet, the Commission's investigation reveals that the officers on the ground do not follow this even as an obiter dictum.

Instead what has been revealed is the gruesome fact that the government is extending the operation of Section 144 of the Criminal Procedure Code, 1973, as required under Section 4(a) of the AFSPA, almost perpetually in Manipur. This is complemented with the increase in the number of armed forces stationed in the state and the number of extrajudicial executions and/or other violent incidents in which the state forces are involved.

The moot point would be whether this has led to any improvement in the situation in Manipur? With a government that is unable to provide even the number of persons having so far lost their lives in Manipur at the hands of security forces, the rationale, or rather irrationality, of extending the operation of AFSPA and Section 144 of the Criminal Procedure Code in Manipur is more than questionable.

Or, as the Commission's findings strongly suggest, is it the very policy of the state not to have a sensible plan for Manipur to address prevailing issues through dialogue? If this is so, it negates the constitutional legitimacy of the government.

The absence of policies and practices, on administrative, procedural, legal, as well as disciplinary oversight that any government concerned about the peace and security of its people and the integrity of its territory should have in place, is further illuminated in the Commission's report.

Dr. Ajai Kumar Singh, former Director General of Police, as well as a member of the Commission, summarises this concern in the report as follows:

"It would appear that successive Governments at Centre as well as State have treated the problem mainly as an issue of public order to be controlled by force through harsh provisions of laws like the AFSPA. If there are prohibitory orders under ection 144 CrPC for decades at a stretch with the AFSPA in force, how are people supposed to carry out their daily activities with a sense of security and peace? There is an overwhelming sense of discrimination in the mind of people and lack of faith in the honesty of intentions of Central and State Governments."

With regard to extremism and suggesting a sensible way of dealing with it, Dr. Singh has said:

"he extremists have succeeded in creating an impression that the Central and State Governments are not serious about solving the problems of the people and want to operate only through brutal force of Army, Para-Military and Police. They (the extremists) then use violence as "the language of the oppressed." Tribal insurgents are perceived as defender of the ethnic identities. People find it next to impossible to communicate with the Armed Forces or Police about disappearances of their kith and kin. The encounters enquired into by this Commission support the perception of the people about brutality of the Police and Security Forces. Extremism is often the outcome of perception (whether true or not) of injustice, oppression and discrimination."

Summarising the findings on the Assam Rifles, Dr. Singh noted that:

"n their write-ups about themselves, Assam rifles claim to be "Friends of the Hill people". They also claim to undertake "People centric projects and schemes". There was nothing in their presentation etc., that would support these claims. The thoroughly unsatisfactory functioning of the tate police has been brought out in the report itself."

The Commission further found, in terms of the procedures to be followed under Section 176 of the Criminal Procedure Code, 1973, concerning magisterial enquiry to be conducted in all cases of death in police custody or police action, that enquires are being undertaken after the lapse of couple of years. The Commission’s investigation also found that judicial enquiries take years to be completed. Such exorbitant delay kills the purpose of the enquiry. The Commission further concluded that the absence of any procedural discipline provides substantial opportunities for state agencies to tamper with and/or destroy the scene of crime.

The Commission has highlighted the callousness with which the authorities deal with accusations against victims killed in encounter. To prove this, the Commission cited a case that it investigated, where the charge against the deceased was that he was suspected of unlawful activities. However, the charge was made after the execution of the suspect, and the case, according to government records is still under investigation against the deceased. The Commission concludes that the provisions of the Unlawful Activities (Prevention) Act, 1967, are abused in Manipur. Anyone shot dead or anyone authorities wish to investigate is charged under the provisions of this draconian law, without reason.

Concerning forensic examinations, the Commission concluded that it is routine practice for such examinations be delayed for days. In not a single case has there been an attempt to undertake a forensic examination of the crime scene. In fact, the state officers who deposed before the Commission were not aware that this is an investigative requirement in each case of extrajudicial execution. In most cases, autopsy examinations are undertaken after long delays.

3. Patterns: In all cases, the Commission found that the state officers did not have any credible, verified, and specific information concerning the identity of the victims. The encounters took place in such fashion that in all cases the security forces have received generic and vague information about a suspect, who, upon being approached by the state agencies, tried to escape and in the process fired at the officers, often one to three shots, using a 9 millimetre pistol, and in retaliation, the officers fired at the suspect thereby killing him.

Often, victims were found to have been fired upon from behind, at a close range, sometimes as close as within 2 feet. All victims have suffered multiple gunshot wounds, ranging from half a dozen to 32 gunshot wounds. In none of the cases, has any security force officer, their equipment, or their vehicle suffered injury or damage. In all the cases, the body has been sent to the hospital and a case registered against the victim, often under the Unlawful Activities (Prevention) Act, 1967.

In not a single case has an investigation, as to the background of the firing that resulted in the death of a person, been conducted by the agencies. In at least two occasions, independent judicial enquiries have revealed that the story proposed by the state agencies was wrong and concocted. Yet, no officer or agency has been asked to provide explanation and no prosecution has been initiated against the officers involved. In all instances, high-ranking officers participated in the action, often sitting in their vehicle at a distance, not direct witness, with messages relayed to the officer through a constable or other low-ranking officer.

Read and understood in detail, these are more than just indications of state-sponsored terror, committed with impunity. It means that Manipur is under the grip of state terror, where executive elimination of citizens is rife. It is a consequential damage, to be expected from such a condition, that the people in the state have become alienated from their government, for which the Union as well as state government must be held answerable. At the very least, the government owes an apology to the people of Manipur for what its agencies have carried out in the name of security.

The state of affairs in Manipur is summarised in the following words of Dr. Singh:

"f one innocent person is killed by police or other security forces in a fake encounter, it creates tremendous upsurge of hatred… people always accurately know who was innocent. People even know whether an innocent person was killed by mistake or deliberately."

The findings of the Court, reflects the collective conscience of the people of Manipur. The deep trauma caused by extreme forms of violence in Manipur, will run through generations, for India and its people, including those who call Manipur home, will have to pay a price. A government that is honest to its constitutional promise has a heavy responsibility to end this violence now, and answer the questions posed in the report, to the satisfaction of the country.

For now, the case before the Supreme Court continues.

The complete copy of the Court's report is available for downloading here.

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.

Rights groups schedule discussion on AFSPA at Geneva

Human Rights Alert (HRA) and the Asian Legal Resource Centre (ALRC) will hold a discussion on the Armed Forces (Special Powers) Act, 1958 (AFSPA) at Palais des Nations, Geneva, on 29 May, 2013. 

The discussion will coincide with the report of the United Nations' Special Rapporteur on extrajudicial, summary or arbitrary executions to the 23 Session of the UN Human Rights Council. The report, A/HRC/23/47/Add.1, dated 26 April 2013, covers the Rapporteur's visit to India. The report deals at length the ill effects of AFSPA, upon the people of India, on the justice process in general and the possibility to resolve the armed conflict in Manipur.

The discussion on AFSPA will be held in room number VIII, from 12.00 to 14.00 hours at Palais des Nations.

Mr. Babloo Loitongbom from HRA and Ms. Neena Ningombam representing the Extra Judicial Execution Victim Families' Association, Manipur, will lead the discussion. Representatives from the Office of the High Commissioner for Human Rights and the Permanent Mission of India to UN in Geneva are expected to attend the discussion.

The Extra Judicial Execution Victim Families' Association is a group from the state of Manipur that has recently approached the Supreme Court of India, seeking directives to the government, requiring the Central government as well as the Manipur government, to be accountable for alleged cases of extrajudicial executions reported from Manipur.

The Association, in its writ application alleges that between 1979 and 2012 May, 1,528 persons were killed extrajudicially in Manipur. The Association has filed in court two lists, in which details of 51 cases are provided, that the petitioner allege is proof to the fact that extrajudicial execution is widespread in the state. 

The Association alleges that the draconian AFSPA is one of the reasons why such wanton misuse of authority with impunity is possible in Manipur, resulting in alarming number of extrajudicial executions in the state. Many of these cases cited by the Association have been reported globally by the ALRC's sister concern, the Asian Human Rights Commission (AHRC).

The Supreme Court, after accepting the case records, constituted an independent Commission to inquire the allegations made in the writ application. The order of the Court is available here. The Commission, after inquiry has filed its report to the Court, in which the Commission has concluded that the allegations of extrajudicial executions made by the petitioner in the case are true.

For further details, please contact:
Mr. Moon Jeong Ho (ALRC representative) moonjeongho@ahrc.asia
Mr. Babloo Loitongbom bloitongbam@gmail.com

Human Rights situation in India: challenges and prospects

B.R.P.Bhaskar

With its incredible variety, India stands apart from the rest of the world. It has within its borders people in social and economic conditions of every kind. Consequently we have to deal with human rights violations of every kind too. Needless to say, the worst sufferers are the marginalized people and those defending their rights.

It is impossible to do justice to the topic of discussion -- Human Rights Movement and Human Rights Defenders: Challenges and Prospects -- in a short talk. I shall, therefore, confine myself mainly to the most vulnerable sections.

The Adivasis  -- officially labelled as the Scheduled Tribes – face grave threats to lives and livelihood all across the country. They generally inhabit interior forest lands or distant hills, having been forced by successive waves of migration to withdraw from the coasts and the plains. With no place left to withdraw to, they are engaged in a desperate struggle for survival.

In Odisha (Orissa), the Adivasis have been fight for seven years to prevent acquisition of their homelands by South Korean steel giant POSCO to establish what has been conceived as the world’s biggest steel complex. A year after the company signed a memorandum of understanding with India authorities Parliament enacted the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, which grants them certain rights regarding use of forest lands and resources. Some environmentalists oppose the law, saying it will come in the way of effective protection of the forests. Good or bad, the law, which came into force four years ago, does not allow the company to proceed with the project. The MoU expired last year. However, the threat to the Adivasis remains as the company and the Central and state governments have not given up the project. Severe repressive measures have been taken against them and their leaders.

Women and children have been in the forefront of the anti-POSCO agitation. Since the presence of children has often come in the way of harsh police action, the state government issued an order banning their participation in the agitation. While exploitative use of children is deplorable, can they really be kept out of a struggle to secure their future.

In the predominantly tribal state of Chhattisgarh, the Adivasis are caught between the devil and the deep sea. Extremist groups have established bases in remote villages and gained followers among the Adivasis by taking up their cause. Security forces engaged in operations against the extremists make no distinction between armed rebels and unarmed villagers. Vigilante groups, armed and funded by the authorities, are still operating in the state, despite a Supreme Court order to disband them. Human rights defenders championing the cause of the Adivasis are branded as extremists and jailed, as happened in the celebrated case of Dr Binayak Sen, whose prolonged incarceration ended only after a strong international campaign.

A more recent case to come out of this rogue state is that of Soni Sori, an Adivasi teacher, hauled up for alleged involvement with the Naxalites. A letter she wrote to the Supreme Court from the prison last month makes pathetic reading. Here are translated excerpts from the Hindi letter:

Today I am alive because of your verdict. You gave the order at the right time so that I could be medically treated again. I was very happy during my treatment at AIIMS hospital in New Delhi, but, Your Honour, I have to pay for it now. I am being harassed and tortured here. I request you to have mercy on me. Your Honour, I am suffering mentally.

1.        I am made to sit on the ground naked.

2.       I am suffering from hunger.

3.      I am frisked in an uncomfortable manner, each part of my body is touched.

4.      Labelling me traitor and Naxalite, they torture me.

Your Honour, how long will the Chhattisgarh and police administration keep on stripping me naked? I am an Indian tribal woman. I also feel shame and I am unable to save my modesty here.

It would have been better if you had given me Death Penalty.

Soni Sori is at a point where human rights violations of different kinds converge. She suffers as a villager, as an Adivasi and as a woman.

The Indian government evades the obligations cast on it by international instruments guaranteeing the rights of indigenous peoples by dishonestly claiming there are no indigenous people in the country although the term Adivasis itself means first inhabitants and testifies to their status an indigenous people.

The Dalits -- officially classified as the Scheduled Castes – constitute another segment of the population which is subjected to social exclusion and systematic repression. Six decades after the Constitution came into force its commitment to abolish untouchability remains unfulfilled in many parts of the country. In a state like Kerala, where overt practice of untouchability does not take place but complaints about derisive use of caste names, which is prohibited by law, are common. Among the offenders are political leaders, some of whom have cast themselves in the role of feudal chiefs. From Tamil Nadu and Karnataka to Bihar and West Bengal, under different political dispensations, Dalits continue to suffer discrimination. In Uttar Pradesh, Dalit empowerment has made much progress but social disabilities remain.

In the area of civil and political rights, there are problems that are a hangover from the colonial period. A conspicuous example is the operation of the Armed Forces Special Powers Act, which grants impunity to security personnel called in assist the civil administration in maintaining law and order. This law, in force in the northeastern states for half a century, was extended to parts of Jammu and Kashmir two years ago. The apathy of the so-called mainstream to the problems of largely tribal population of the northeast and the predominantly Muslim population of Kashmir allows the government to use AFSPA, an extraordinary law conceived as a short-term measure, even when there is no major insurgency. Irom Sharmila, a young woman of Manipur, on an indefinite fast for 11 years demanding withdrawal of AFSPA, is kept alive through forced nasal feeding in custody at an Imphal hospital.

Terror attacks are a new form of human rights violation the country has to contend with. Reports of killing of alleged terrorists in fake encounters surface from time to time. Doubts exist about the extent to which the police forces, contaminated by communal propaganda and infiltration, can be relied upon. Some instances in which acts of violence committed by Hindutva elements were falsely attributed to Muslims have come to light. Reassertion of authority by khap (caste) panchayats in some northern states -- they have been ordering so-called honour killings and curbing the rights of women – points to return of rights violation of the feudal era. In the absence of political will to put down the attempts by feudal elements to take the law into their own hands, judicial interventions have been of little avail.

Wanton destruction of the environment in the name of development is a new area of concern. If it is not checked, it may not be possible for the present generation to bequeath to the next an inhabitable planet.

The political complexion of the government makes no difference to the human rights situation. The early promise held out by bodies such as the Human Rights Commissions, Women’s Commission, Scheduled Castes and Scheduled Tribes Commission and the Information Commission, which came up at the national and state levels during the past two decades, has faded. The primary cause of failure lies in their composition. They are headed by retired judges or bureaucrats, many of whom look upon the new assignments as rewards for past services and are slack in using the new instruments at their disposal to advance the cause of human dignity. The members of these bodies are political nominees who put party interests above human rights.

While the Indian authorities are ready to ignore the most strident voices from within the country they are somewhat sensitive to foreign criticism. The law providing for human rights commissions was enacted under pressure from aid givers. For years, the government blocked attempts by the United Nations to look at the human rights situation in the country. It now allows visits by UN Special Rapporteurs. Although the government determines the places they can go to, civil society representatives are able to meet them and place facts before them. Margaret Sekaggya, Special Rapporteur on the situation of human rights defenders, was in India last year and Christoff Heynes, Special Rapporteur on extrajudicial, summary or arbitrary execution early this year.

Sekaggya said at the end of her visit that she had heard “numerous testimonies bout male and female human rights defenders and their families, who have been killed, tortured, ill-treated, disappeared, threatened, arbitrarily arrested and detained, falsely charged, under surveillance, forcibly displaced, or their offices raided and files stolen, because of their legitimate work in upholding human rights and fundamental freedoms.”

She added, “These violations are commonly attributed to law enforcement authorities; however, they have also reportedly shown collusion and/or complaisance with abuses committed by private actors against defenders. Armed groups have also harassed human rights defenders in some instances.

“In the context of India’s economic policies, defenders engaged in denouncing development projects that threaten or destroy the land, natural resources and livelihood of their community or of other communities, have been targeted by state agents and private actors, and are particularly vulnerable.

“I am particularly concerned at the plight of human rights defenders working for the rights of marginalized people, i.e. Dalits, Adivasis (tribals), religious minorities and sexual minorities who face particular risks and ostracism because of their activities. Collectivities striving for their rights have in fact been victimized.

“Women human rights defenders, who are often at the forefront of the promotion and protection of human rights, are also at particular risk of persecution.

“Right to Information (RTI) activists, who may be ordinary citizens, have increasingly been targeted for, among others, for exposing human rights violations and poor governance, including corruption of officials….

“I am troubled by the branding and stigmatization of human rights defenders, who are labelled as ‘Naxalites (Maoists)’, ‘terrorists’, ‘militants’, ‘insurgents’, ‘anti-nationals’, ‘members of underground’. Defenders on the ground, including journalists, who report on violations by state and non-state actors in areas affected by insurgency, are targeted by both sides.”

Christoff Heynes said, “Evidence gathered confirmed the use of so-called ‘fake encounters’ in certain parts of the country. When this happens, scene of a shoot-out is created, in which people who have been targeted are projected as the aggressors who shot at the police and were then killed in self-defence.

“Moreover, in the northeastern states and Jammu and Kashmir, the armed forces have wide powers to employ lethal force. This is exacerbated by the high level of impunity that the police and armed forces enjoy, due to the requirement that any prosecutions require sanction from the central government – something that is rarely granted.”

Both Sekaggya and Heynes have recommended a number of measures to improve the human rights situation. So far there is nothing to indicate that the government is ready to act upon their recommendations. A sustained campaign at national and international levels is needed to make it budge.      

Based on a paper presented at the National Seminar on “Human Rights Movement and Human Rights Defenders: Challenges and Prospects”, organized jointly by the Vigil India Movement and the Ecumenical Christian Centre, at Whitefield, Bengaluru, on August 9 and 10, 2012.

A colonial legacy that must go

BRP Bhaskar
Gulf Today

The Indian government is under increasing pressure from within the country and outside to curb the gross human rights violations resulting from prolonged use of the armed forces to deal with internal disorder.

Deployment of army personnel to deal with uprisings is a colonial practice. The British rulers were fighting rebellious elements in the northeastern region, as also the northwestern region which now forms part of Pakistan, till their very last days in the subcontinent.

Since insurgency in the northeast continued to be a problem, the government re-enacted in 1958 the colonial-era Armed Forces Special Powers Act (AFSPA) and brought it into force in the northeast. Following a spurt in terrorist activity, the law was extended to parts of Jammu and Kashmir in 1990.

AFSPA allows military personnel deployed in areas, which the government has declared as “disturbed”, to fire upon and even kill anyone acting in contravention of law and search any premises and arrest without a warrant anyone who has committed or is suspected to have committed certain offences. It grants security personnel immunity against legal action.

Although the law prescribes a six-month time-limit for an order declaring an area as “disturbed” the government has circumvented the restriction by repeatedly re-promulgating orders. Thus the draconian measure has been in force continuously for well over half a century in the northeastern states and more than two decades in Kashmir.

As a result, the fundamental rights guaranteed by the Constitution remain abridged in these areas. The bulk of the people of the northeast are tribesmen with distinct cultures of their own. J and K is a state with a Muslim majority. These demographic factors give the story of denial of democratic rights an additional dimension.

In the affected areas there have been continuous anti-AFSPA protests, the most poignant of which is the 11-year-old fast by Manipur poetess Irom Sharmila whom the authorities are keeping alive through forced nasal feeding. Since public opinion in the mainline states is muted, the government has found it easy to ignore the local protests.

The large number of cases of missing persons reported from areas where AFSPA is in force and the unearthing of an unmarked mass grave in Kashmir have fuelled civil rights groups’ demands for repeal of the law.

Kashmir Chief Minister Omar Abdullah has demanded that AFSPA be withdrawn in view of the decline in militant activity in the state. In its report to the Central government, the team of interlocutors headed by journalist Dileep Padgaonkar has drawn attention to the recommendations of various bodies, including the Justice Jeevan Reddy Commission, to repeal AFSPA or at least amend it to bring it in line with the criminal law. It wants the army to remain in the barracks and policing functions to be transferred from the paramilitary units to the state force under a phased programme.

Last week Home Minister P Chidambaram flew to Kashmir to persuade the Chief Minister to accept a modified version of AFSPA. This appears to be part of an attempt to soften public opinion in view of the adverse observations made by the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, at the end of his recent visit to India.

Heyns, who had met government representatives as well as rights activists in different parts of the country during the 12-day visit , described AFSPA as a symbol of excessive state power which “clearly violates international law” and asked that it be scrapped. This recommendation is sure to figure in the report he submits to the UN Human Rights Council.

It is not the Central government alone that wants to keep the AFSPA alive in some form. The Bharatiya Janata Party, which is in power in several states, is an even more ardent advocate of its ruthless application than the Congress, which heads the ruling coalition at the Centre. The Communist Party of India (Marxist) favours its withdrawal from Kashmir, but wants it to continue in Tripura, where it is in power.

Sudhir Vomnatkere, a retired major-general who had headed the Army’s human rights cell, in a recent interview to a website threw light on a little known aspect of AFSPA. When an area is declared as “disturbed”, there is political darkness under which “corruption of various kinds – political, economic, financial, money, women, drugs, smuggling etc” can go on, he said.  Clearly, AFSPA must go – in the interests of democracy. -- Gulf Today, Sharjah, April 16, 2012.

Irom Sharmila support group holds prayer meeting at Rajghat

A prayer meeting was held at Rajghat at 9 a.m. on Saturday, International Human Rights Day, under the auspices of the Save Sharmila Solidarity Campaign (SSSC).

The prayer meeting was organized as Delhi police refused permission for a fast in solidarity with Irom Sharmila, who has been on fast in Manipur for more than 11 years demanding withdrawal of the Armed Forces Special Powers Act.

Apart from eminent academicians, domestic workers, rights and peace activists, students, teachers, lawyers and others attended it.

This was followed by a press conference at the Press Club lawns. Many known social activists were present and they voiced their concerns with regard to freedom of speech and human rights in the context of the heroic struggles of Irom Sharmila and many others.

They demanded an end to heavy militarization, withdrawal of the AFSPA and restoration of peace and freedom in the North-East and in Jammu and Kashmir.

Medha Patkar, Convener, National Alliance of People’s Movements, said, “This refusal (to lift AFSPA) reveals the fear of the Government. Their intolerance towards non-violent protests and dialogue and reluctance to engage with people's movements is leading to more violent conflicts in the country today. If they fear law and order issues it is their duty to maintain law and order and not trample upon the citizens’ fundamental right of peaceful gathering and protest”.

Aruna Roy, member, National Advisory Council, added, “I feel as society we have failed Sharmila in her struggle. Why has she been made to fast for 11 years? If the government is not responding to it then let others take it up.”

SSSC members who spoke demanded that the Jeevan Reddy Committee report, the Moily report and the Kashmir interlocutors' report should all be made public and their recommendations implemented after a nationwide public debate.

They said they would soon approach the Union Home Ministry with a demand that the government resolve the issue of human rights violations through active dialogue with the concerned parties. They wanted the ministry to evolve a phased demilitarization strategy.

They suggested that the government must talk with Irom Sharmila. They also wanted a representative committee to examine the cases of rights violations in Manipur and other places and take action. They pointed out that draconian laws were making the country weak and there was no place for such laws in a democracy.

Contact: Devika Mittal: 9582129927, Shaheen: 9899830412, Ravi Nitesh : 9958907799

Uniform of whatever colour should not subdue legislative wisdom: AHRC

The following is a statement issued by the Asian Human Rights Commission, Hong Kong:

The Armed Forces (Special Powers) Act, 1958 (AFSPA) is a subject of severe criticism by human rights activists and jurists in India and across the world. The alarming number of human rights abuses committed by the security agencies deployed in regions where AFSPA is currently put to use is depressing proof to the draconian nature of this law. Many lives lost already - estimated to be more than 4000 since the Act came into force in 1958 - to this the Act underscores the non-compatibility of this law to the notion of democracy. The statutory impunity provided in the Act and the extreme nature of force, that could be used arbitrarily on mere suspicion, empowering a soldier to shoot to kill with no fear of prosecution which is used without restraint till today, proves that this law has not only failed, but would not by any stretch of imagination be of use to curb armed secessionist militancy in the country. Yet, the Indian Army is now entangled in a browbeating debacle with the civilian government in the state of Jammu and Kashmir and the state's legislature concerning the withdrawal of this law from certain parts of the state. The army's attempt is to continue enjoying the despicable impunity this law provides therefore unbecomingly benefiting from it.

The Chief Minister of Jammu and Kashmir has been running between the state and national capitals since the state legislature passed a resolution to authorise the partial withdrawal of this law from the state. The army since then has been claiming that its operative framework would be compromised should the law be withdrawn.

In this context, the Chief Minister of the state is right in opining that the army's role is primarily to protect the country's border, and not to maintain law and order, at the expense of superseding the legitimate writ of the government, and thus in essence of the people. The army and the Government of India should not have pushed the matter to such ridicule. For the army to instruct the government, India is not Pakistan.

The architecture of impunity in AFSPA negates the notion that this law is legitimate. Army's demand to continue with AFSPA against the decision of the state legislature is against its constitutional mandate, to be under civilian fiat, and opposes the supremacy of the people. That some officers in the army are applying unwarranted and inappropriate pressure upon the government not to withdraw the law from operation is in essence insult of legislative wisdom. It reiterates the universal truth that an army, if allowed to operate with impunity, would not prefer to return to be under the control of civilian authority.

The only force, to which the country's armed forces must surrender, unconditionally, is to its people. The Indian Army does not have a mandate beyond the constitutional premise that Indians decided to practice since 1950. To demand otherwise is nothing less than pushing a democratically elected civilian government to revolt against its own security forces.

There is no merit in the army's contention that the soldiers follow their code of conduct when operating in areas where the AFSPA is enforced. The AHRC has documented more than 300 cases so far where the army has openly violated every expected norm of operative justice and law, where AFSPA is in force. The conversation of the dead from hundreds of unmarked graves identified by the State Human Rights Commission of Jammu and Kashmir is gruesome proof to the fact that the Indian Army has 'done their job' as it suited them. That thus far there has been not a single prosecution or independent and transparent investigation concerning the unmarked graves in the state reiterates that the impunity is absolute.

The argument that AFSPA helped control secessionist or otherwise destructive activities is equally false. The brutalities committed by the armed forces under the protection of AFSPA against the people have deeply alienated the people from rest of the country. It has fuelled intolerance, breeds mistrust, generates and maintains fear. AFSPA is the iniquitous fountain of moral reasoning that supports militant and religiously fundamentalist organisations and helps them seek and receive support from at least three different neighbouring countries. The commendable move by the Jammu and Kashmir state government is to address this. It has to be supported, that similar actions could be initiated in other places, for instance in Manipur.

The army's dependence upon this draconian law can be interpreted, that the army is incapable of operating in a transparent and accountable environment, and is against the interest of the nation. It contradicts the highest morale the Indian Army is sworn to maintain. That the secessionist and militant forces require the cover of impunity to operate, the brute violence such entities commit and the nature of internal and external support they receive must not be the defining rationale of the operative framework of a disciplined force.

What happens in India will have an impact upon the region. That the Indian Army dictating the government about security policies will further encourage armed forces in countries like Sri Lanka where the present president is using his military might to subdue democratic debates in that country. It could discourage discussions about the accountability of the Nepal Army and that of the former armed Maoist cadres for the human rights abuses they are accountable for. It will foster the operative impunity enjoyed by state forces like the Rapid Action Battalion in Bangladesh and allow them remain unaccountable for human rights abuses. Whenever these issues get discussed in regional or international fora, India would have no moral voice to support calls for accountability should the Indian Army enjoy despicable impunity within India.

Indian Army is not above the parliamentary writ. That it has started exhibiting some of the despicable tendencies of the Pakistan Armed Forces that have repeatedly overridden democratic writs allowing democracy to make only cameo appearances in that country has to be reprimanded at its onset. That the country's army claiming that it requires an aura of impunity to operate could be interpreted as a warning that the army might be becoming incompatible to function within a democratic space.

At the very least, it is not for military generals of the country to decide administrative and security policies. Neither should a uniform, irrespective of its colour, subdue legislative wisdom.

Civilian supremacy at stake

BRP Bhaskar
Gulf Today

A proposal to withdraw the Armed Forces Special Powers Act from some areas of Jammu and Kashmir, mooted by chief minister Omar Abdullah, was http://www.blogger.com/img/blank.gifshelved last week as the military brass opposed it and the civilian leadership stood deeply divided. The chief minister’s suggestion was eminently reasonable. But he made the mistake of airing it publicly without prior consultations with the Congress party, the National Conference’s junior partner in the government.

State Congress president Saifuddin Soz opposed the suggestion. He may have seen Omar Abdullah’s statement as part of an attempt to shore up the National Conference’s sagging image by appealing to Kashmiri sentiments. He probably had another reason also to shoot down the proposal. The Central government is unable to formulate a clear position on the issue.

It is for the Central government to take a view in the matter after considering the situation on the ground. There are reports that the Home Ministry is in favour of partial withdrawal of AFSPA but is not able to go ahead because of the Defence Ministry’s opposition.

AFSPA is a colonial-era law re-enacted in 1958 to deal with insurgency in the predominantly tribal states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura, all in the northeast. It confers special powers on armed forces deployed in designated “disturbed areas”. To begin with, the power to declare an area as “disturbed” vested exclusively in the state government. In 1972, this power was vested in the Centre as well.

The law gives the military wide powers of arrest and the right to shoot to kill and occupy or destroy property in the course of counterinsurgency operations. Although Kashmir has witnessed internal and external challenges from the dawn of Independence, AFSPA was extended to the state only in 1990 when foreign-backed terrorist groups wrought havoc.

National and international human rights organisations hold that the immunity the law grants to the security forces has led to human rights abuses such as torture, extra-judicial executions and unexplained disappearances. They believe widespread abuse of powers has helped the insurgents by aggravating the sense of alienation of the people.

The Indian Institute of Defence Studies and Analysis, which has studied the working of AFSPA, has stated that there have been many instances of violence by security forces against civilians in Manipur. In one of the diplomatic cables made public by WikiLeaks, the US Consul General in Kolkata remarks that Manipur appears more like a colony than an Indian state. He also says the governor admitted to him that there have been human rights violations under cover of AFSPA.

On Nov.2, 2000, Irom Sharmila, a young Manipuri woman, began an indefinite fast demanding withdrawal of AFSPA. Eleven years later, she is still on fast in a hospital where she is kept alive through forced nasal feeding in police custody.

A campaign mounted by local civil society groups after the death of a woman in custody in 2004 forced the Centre to appoint a committee headed by BP Jeevan Reddy, a former Supreme Court judge, to review AFSPA and examine the possibility of amending it.

The committee, in its report submitted in 2005, recommended that AFSPA be scrapped as it had become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness. The government ignored the recommendation. Later, under pressure from domestic and foreign human rights groups, Prime Minister Manmohan Singh promised to amend AFSPA to eliminate its draconian provisions. The promise remains unfulfilled.

The government’s inaction stems from successive defence ministers’ unqualified support for the army’s stand that it cannot operate except under conditions of impunity. Their position puts at jeopardy the principle of civilian supremacy which underlines the provision in India’s Constitution that vests the powers of the commander-in-chief of the defence forces in the elected president.

While the Bharatiya Janata Party, in keeping with its jingoistic line, supports continuance of AFSPA, the Left parties want it to be repealed. Civil society groups are now striving to broadbase the anti-AFSPA campaign, which has been confined to the affected areas so far. In March 2010 a group of activists from Kerala took out a march from Cherthala, home town of Defence Minister AK Antony, to Manipur to express solidarity with Irom Sharmila. Last week a people’s caravan that set out from Kashmir reached Manipur after covering 4,500 kilometres.--Gulf Today, Sharjah, October 31, 2011.

Nationwide action from May 22 to August 18 seeking repeal of AFSPA

The National Alliance of People’s Movement has called for nationwide action from May 22 to August 18, 2011 in support of the demand for repeal of the Armed Forces Special Powers Act, a colonial law which the Indian government still invokes 64 years after gaining Independence.

The following is a statement issued by NAPM in New Delhi on Tuesday in this connection:

On May 22, 1958 the Armed Forces Special Powers Act, a colonial law used against Mahatma Gandhi, was re-promulgated through an ordinance initially in the Naga areas of Assam (later divided between four states) and later in Mizoram, then in parts of Manipur and later in all of Manipur. The ordinance, after a brief discussion in Parliament, was endorsed and got the status of Act on August 18, 1958, despite stiff resistance from various quarters who challenged it as a martial and draconian law.

Since then it has been in force in one part or the other of the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and Jammu and Kashmir (since 1991) -- even though continuation of the 'disturbed area' status under AFSPA in many parts of the country is illegal in view of violation of the mandatory six monthly periodic review directed by the Supreme Court in its 1997 judgment.

AFSPA continues to be the most potent repressive tool of the Indian state that empowers even a non-commissioned officer of the armed forces of the Union to kill on mere suspicion and provides him legal immunity from prosecution, thereby causing untold misery and agony to the peoples in the affected regions. The imposition of AFSPA is synonymous with heavy militarization leading to gross violations of civil and political rights including enforced disappearances, extra-judicial execution, torture, inhuman and degrading treatment, rape and other forms of sexual violence against women, arbitrary arrest and detention. All this together has meant severe economic, social and cultural cost including erosion of civil administration, lack of access to education, basic health care, destruction of properties and sources of livelihood, and environmental destruction and 'normal' functioning of democratic institutions in these areas.

The continued and selective use of AFSPA against communities who have been demanding self-determinations rights is a cause of worry in the context of the increasing militarization of the society in the subcontinent especially after 9/11 and the growing communalization of the polity in India as a whole and suppression of people's democratic rights in the name of national security.

This law is more draconian than its predecessor ordinance used by the British to suppress the Quit India Movement. On the pretext of controlling insurgency, this Act has helped to intensify the insurgency in the region and legitimized thousands of gross human rights violations like rape, torture, murder and “disappearances” of innocent people in the Northeast and J & K. The democratic movements in the Northeast and J & K have consistently demanded the repeal of the Act and demilitarization for decades.

Continuing with our efforts for establishing democratic values in the society and in solidarity with the struggles of democratic movements of Northeast and J & K National Alliance of People’s Movement (NAPM) calls upon the Government of India :

1. To repeal immediately
• The Armed Forces (Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura) Special Powers Act, 1958 (as amended in 1972), and
• The Jammu and Kashmir Armed Forces Special Powers Act, 1990

2. To refrain from inserting any part of the Acts into any other legislation granting unbridled powers to the armed forces of the union or the State police.

3. Immediately work out and announce a phased, time-bound demilitarisation plan to withdraw the Army and other paramilitary forces from internal security duties in NE states and J & K.

It needs to be noted that AFSPA is not only opposed by the movement groups and the rights bodies but also by the Government’s own commissions and committees appointed to look into the matter. For example, the Committee to Review the Armed Forces Special Powers Act, headed by Justice B. P. Jeevan Reddy in 2005, the Administrative Reforms Commission headed by Dr. Veerappa Moily in 2007 and several others have damned the use of AFSPA and demanded immediate measures for its withdrawal from civil areas.

Internationally, the UN bodies including the Committee on the Elimination of Racial Discrimination and the UN High Commissioner for Human Rights and recently the UN Special Rapporteur on Human Rights Defenders have consistently urged its repeal. However, all these have gone to the deaf ears of the Government.

Along with the struggles of millions of people against the militarization and AFSPA, the fast by Irom Sharmila Chanu has crossed 10 years. She has been force-fed through her nose by the Government, arrested and charged with attempt to commit suicide, criminalized as a high security prisoner, denying her access to family, friends, supporters and the media. It is a shame that in this land of Gandhi, a non-violent protester has been subjected to such humiliation for more than ten years. Even as she continues her struggle along with many in the NE and J & K, we appeal to our comrades in human rights groups and people’s movements across the country to demand repeal of AFSPA along with other draconian laws like UAPA, MCOCA, CSPSA and others and resist the increasing militarization of democratic spaces.

You can join us by organizing

1. Public protests, dharnas, relay fasts in your area

2. Public meetings and seminars on AFSPA and Irom Sharmila demanding the repeal of AFSPA

3. Performances of the solo play `Le mashale’ on Irom Sharmila by Ojas S.V. Write to her meetojas@gmail.com or call 020 - 24251404
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4. Painting exhibitions on Irom Sharmila. The exhibition can be downloaded from: http://www.e-pao.net/epGallery.asp?id=1&src=AFSPA_Related/Neogene201102

5. Screening if films on AFSPA. Copies of the video films are available from: email: insafdelhi@gmail.com or phone: 011-26517814

6. Public signature campaigns and sending them to the Prime Minister, the Defence Minister, the Law Minster, the Home Minister and the National Human Rights Commission

7. Issuance of statements by well known writers, intellectuals, film personalities, theatre people, musicians and other artists

8. Any other form of action that you may find appropriate to strengthen democracy in this country

Medha Patkar, Sandeep Pandey, P Chennaiah, Gabriele Dietrich, Suniti S R, Sister Celia, Rajendra Ravi, Bhupendera Singh Rawat, Mukta Srivastava, Faisal Khan, Anand mazgaonkar, Madhuresh Kumar

http://www.blogger.com/img/blank.gif

For details contact or write to napmindia@napm-india.org | 9818905316

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Mobile +91 9818 905316 | 011 2624 1167
email : napm.madhuresh@gmail.com | napmindia@gmail.com
Web : www.napm-india.org

Read NAPM's News magazine, Movement of India @ http://issuu.com/MovementOfIndia

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People’s Tribunal report on military governance in Kashmir

The following is a statement from the International People's Tribunal on Human Rights and Justice in Indian-administered Kashmir, forwarded by the Asian Human Rights Commission, Hong Kong:

The International People's Tribunal on Human Rights and Justice in Indian-Administered Kashmir (IPTK) feels morally obligated to make this statement today. Sustained alliances between local communities and IPTK have enabled us to bear witness to the escalating conditions induced by militarized governance, and the severity of psychosocial dimensions of oppression in Indian-administered Kashmir. From our work since being instituted in April 2008, from the reports and briefs we have authored, investigations we have undertaken and are in the process of completing, we find it ethically imperative to comment on the direction in which the Governments of India and Jammu and Kashmir, and the Indian Armed Forces, appear to be headed, and the consequences they will likely effect.

Conflict Resolution?

The Government of India has recently called for "creative solutions" to resolve the "Kashmir problem." If we map the events of the past six months inside Indian-administered Kashmir, the approach of the Indian state is aggressively militaristic. While commitments to political diplomacy frame relations between New Delhi and Islamabad, in Indian-administered Kashmir, there are no such engagements with civil society or with the pro-freedom leadership. There is no acknowledgement of civil society's insistent demand for the right to self-determination.

Kashmir is not a "problem" but a conflict zone

India's militarization is aimed at territorial control of Kashmir, and control over key economic and environmental resources in the region, including those of the Siachen glacier. The Government of Kashmir is unable to prevail politically or exercise control over the Indian Armed Forces. India's political dominance hinges on its ability to possess Kashmir. Institutions of democracy -- the judiciary, educational institutions, media -- are neutralized by the Government of Jammu and Kashmir and the Indian Armed Forces as they function in tandem, continuing "military governance." State violence seeks to undermine people's capacity to resist and solicits collaborators.

Predominant reality is militarized governance

The pervasive presence is that of the military and paramilitary, whose xenophobic and forceful infiltration into every aspect of economic and civic life is palpable. Armed forces are present at educational institutions, hospitals, shopping complexes, cafes and hotels, sporting events, playgrounds, and bazaars. They monitor people as they enter mosques and shrines. They also collaborate with Hindu nationalists in instituting "self-defence" campaigns and militias, such as forming the 100 Village Defence Committees announced in May 2010, promoting militarized Hindu nationalism.

Zero Tolerance?

Human rights violations in Kashmir are a means of maintaining military governance. The Omar Abdullah Government has repeatedly promised "zero tolerance" for human rights violations. Zero tolerance? What we have witnessed is "zero tolerance" for nonviolent civil society dissent, as security forces brutalize people on the streets chanting "Go India, Go back," chanting "India, Quit Kashmir."

On June 24, 2010, Chief Minister Abdullah stated that separatist/pro-freedom leaders were instigating youth to violence, following which security forces ensued repression on political leaders calling for peaceful protests. Crowds marching to Sopore on June 28 to protest and mourn the death of three youth killed by the paramilitary were met with force. Police used tear gas and opened fire on the protesters and journalists, killing one person. In Delina, a nine-year boy was killed by security forces.

Condoning and rationalizing the deplorable actions of the CRPF and police, the Home Secretary of India, G. K. Pillai, characterized civilians fired upon by security personnel as people who were culpable as they violated curfew and attacked police posts. This further evidences the patronage that the security forces enjoy from highly placed government officials, and emphasizes the state's view that civil society resistance to militaristic governance is criminal behaviour.

From the actions and statements of security forces and politicians in power, it appears that all civil disobedience is being defined as anti-national, as equivalent to "terrorism." Peaceable protests are fired upon, as security personnel repress women and men participating in them. Stone pelting, a means of dissent in Kashmir, is termed violent. Stone pelting, Kashmir youth states, is an expression of rage by a subjugated people whose political means of expression and demands are systematically limited. Stone pelting, Kashmir youth say, cannot be compared to the brutish techniques of domination used by the state.

Leaders under house arrest

Even elected officials are prevented from staging public protests, such as an MLA and his with approximately 100 co-workers, who were stopped from protesting during Indian Prime Minister Manmohan Singh's visit to Srinagar. In 2008, the Prime Minister had stated that elections in Kashmir would render separatist leaders irrelevant, as elected officials would speak for the people. Ironic.

There appears to be no governmental interest in acknowledging and responding to the actions of the military and paramilitary. People, including minors, and political leaders that participate in resistance are booked under the Public Safety Act (PSA). Undeclared curfews permit security forces to operate without noting cause or prior warning. In November 2009, Lt. General, B.S. Jaswal, characterized civil disobedience in response to calls given by dissenting political leaders as "agitational terrorism" prompted by "terrorists." During the pacific resistance of 2008 and 2009, protests had also turned lethal as security personnel fired into crowds. Cyber resistance then was termed "cyber terrorism," and monitored.

Real violence in the present -- bullets, torture, landmines, injuries, arrests, human shields, molestations, sexualized violence, forced labour, detentions, disappearances, murder -- is virtually monopolized by the military and paramilitary in Kashmir. The list of perpetrators is long.

Killings Without Accountability?

Between January-June 2010, reportedly 40 civilians have been killed (25 of whom were killed by security forces), 107 persons identified as militants have been killed, and 57 soldiers have been killed (of the 57, 28 soldiers were killed by militants, 14 committed suicide, 2 died in fratricidal killings, 7 died in grenade/mine explosions, and 6 were killed by unidentified gunmen). Those killed by the Central Reserve Police Force and police were all young men, all Muslim.

Over 20 persons have been killed in "encounters" in just April and May 2010; each reported as "infiltrating" militants. Only four deaths have been investigated, all found to be fake encounter killings.

Reportedly, 335 militants were killed in 2008 and 236 militants were killed in 2009. There are no systematic investigations into alleged "encounter" killings. Promises made about inquiries and commissions are not honoured, as, for example, in Machil, where, after the three fake encounter killings, a Divisional Inquiry was promised but not authorized. In 2008, 367 Habeas Corpus Petitions were filed in the High Court at Srinagar, 272 petitions filed in 2009, and 159 petitions filed between January and mid-May 2010. International human rights law argues that a state must respect the right to life. The Indian Armed Forces repeatedly break this covenant in Kashmir.

Some fake encounter and other killings have taken place around high-profile talks. Military and state discourse use these killings to hype fear of armed militancy and infiltration, stating that militants, scattered all over, seek to target Hindus, requiring hyper-vigilance on the part of security forces. The actions of the state and the military and paramilitary are calculated to provoke and inflame. The armed struggle in Kashmir of the 1990s abated, again becoming nonviolent resistance between 2004-2007; even as cross-Line of Control (between India and Pakistan) movements, infiltrations, and insurgency into Indian-administered Kashmir are significant issues. The Indian state, however, exaggerates these realities by linking Kashmiri civilian resistance to "foreign terror," to enable Indian's administration of Kashmir to proceed with impunity.

The Government of India has stated that Pakistan does not want peace, and might encourage militant attacks. Does India want peace in Kashmir? Is India willing to recognize what "peace" will require, and take those steps?

Military Governance?

The Indian state does not define the present as a time of conflict inside Kashmir. Yet, the Armed Forces have become increasingly more powerful and entrenched in Indian-administered Kashmir. Both New Delhi and the Omar Abdullah Government appear unwilling, or unable, to control the military and paramilitary. Is the military more powerful in Kashmir than the civil administration?

Military-talk and dominant political speech state that the Indian Armed Forces are in Kashmir to protect citizens, and justify civilian suffering and killings as collateral damage in a war on terror. Akin to the George W. Bush era in the United States, this war of "good" against "evil" makes critique or dissent impossible without disagreement becoming affiliated with what is "evil," "dangerous," and "anti-national." There is no way out of the contradiction that India's military is the protector of Kashmiris who are also potential enemies, as long as military suppression of Kashmiris is understood as crucial to defending India.

Questions regarding the Indian armed forces in Kashmir, with fifty-six soldiers committing suicide in Kashmir in 2008-2009, and fifteen instances of fratricidal killing, are muffled.

The PSA, the Disturbed Areas Act, the Armed Forces Special Powers Act (AFSPA) are security related legislation in contravention of international humanitarian laws that guarantee immunity to army and paramilitary forces. On February 26, 2009, soon after assuming office, Chief Minister Abdullah stated that AFSPA should be revoked. The armed forces challenged his authority, declaring such intent as "regressive," stating "any move to revoke AFSPA in Jammu and Kashmir would be detrimental to the security of the Valley and would provide a boost to the terrorists." Dialogue with the Indian state and Kashmiri pro-freedom leaders regarding autonomy and the revocation of AFSPA were electoral promises made by the current Chief Minister. To revoke AFSPA would be to interrupt not only legal, but political, impunity.

Kashmiris are now being told that it is better for their security to amend, not revoke, AFSPA.

International Community

Kashmir is a laboratory of violent experiments conducted by Indian military and state institutions. The sustained militarization in Kashmir is not called "military rule" by the Indian state and international community. Civil society in Indian-administered Kashmir remains "under the authority of the hostile army," whose reach and power "has been established and can be exercised," (Hague Convention, Laws and Customs of War on Land Article 42, 1907).

India's militarization is portrayed as an "internal" matter, refusing transparency, international scrutiny, and adherence to international humanitarian law of conflict and war. In the face of the Indian state's violations of international humanitarian law, of protocols and conventions, and perpetration of crimes against humanity, there is a deafening silence on the part of the international community. The Kashmir conflict, like other international conflicts, requires urgent attention and resolution. There is, at present, no monitoring, no sustained visibility, no engagement that can produce ethical and viable results.

That Kashmiris must be an integral part of any resolution repeatedly escapes the international community, and India and Pakistan. If the current situation continues, and nonviolent dissent is systemically brutalized, might the Government of India force Kashmiri civilians to perhaps take up armed militancy once again, continuing the cycle of violence? Is the international community not accountable for averting this?

The United States, the European Union, and other nations must recognize that the resolution of the Kashmir issue is directly significant to peace and security in South Asia. Institutions and states participating in military collaborations and exercises on Kashmir must yield to transparent dialogue, and address the difficult questions of conflict resolution.

Recently, the Government of India took issue with the Canadian Government's scrutiny of Indian visa applicants with military backgrounds. In the past, among such applicants, some, for example, have been perpetrators in Kashmir that have sought residency aboard. A scrutiny of certain categories of military personnel travelling aboard is perhaps necessitated by India's apathy in prosecuting perpetrators.

The Global North's desire to benefit from India as a vast/potential economic market must not continuously sideline egregious human rights violations.

Concerns

We wish to enter into public record that following the Majils-e-Mashawarat of Shopian's request that IPTK inquire into the death of Ms. Asiya Jan and Mrs. Neelofar Jan in May 2009, to deliver an accurate understanding of the matter and define a mechanism for justice, we wrote Chief Minister Abdullah in January 2010, requesting cooperation and access, which have been denied us to date.

As well, we wish to enter into public record that the Government of Jammu and Kashmir and the Government of India have not undertaken investigations into the findings of BURIED EVIDENCE, IPTK's report on unknown, unmarked, and mass graves in Indian-administered Kashmir, or acted on its recommendations. Such action may have generated constructive interventions into the continuing chain of extrajudicial executions by the Indian military and paramilitary.

Dr. Angana Chatterji, Convener, IPTK and Professor, Anthropology, California Institute of Integral Studies,

Advocate Parvez Imroz, Convener, IPTK and Founder, Jammu and Kashmir Coalition of Civil Society,

Gautam Navlakha, Convener, IPTK and Editorial Consultant, Economic and Political Weekly,

Zahir-Ud-Din, Convener, IPTK and Vice-President, Jammu and Kashmir Coalition of Civil Society,

Advocate Mihir Desai, Legal Counsel, IPTK and Lawyer, Mumbai High Court and Supreme Court of India,
Khurram Parvez, Liaison IPTK and Programme Coordinator, Jammu and Kashmir Coalition of Civil Society.

Queries may be directed to Khurram Parvez at kparvez@kashmirprocess.org
Phone: +91.194.2482820
Mobile: +91.9419013553