South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

NEW DELHI (SANA): A senior United Nations (UN) Rapporteur has called for repeal of controversial Armed Forces Special Powers Act (AFSPA) and Jammu and Kashmir Disturbed Areas Act (DAA) and Public Safety Act (PSA).

“AFSPA allows the state to override rights. Such a law has no role in a democracy and should be scrapped,” Christof Heyns, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions told reporters in New Delhi while releasing interim report of his 12-day visit to India. The contentious law has become a symbol of excessive state power and has resulted in consuming innocent lives in J&K and Assam, he said.

Describing AFSPA a clear violation of international law, Heyns said its repeal would “not only bring domestic law more in line with international standards, but also send out a powerful message that instead of a military approach, the government is committed to respect the right to life of all people of the country.

Accountability is circumvented by invoking AFSPA’s requirement of obtaining prior sanction from the Central government before any civil prosecutions can be initiated against armed forces personnel, he said adding that information received through RTI applications show that this immunity provision effectively blocks any prosecution of members of the armed forces.

The UN official said the powers that authorities have to override rights in these areas are more extensive than they would be under a state of emergency “since the right to life is in effect suspended, and this is done without the safeguards applicable to states of emergency.”

“This law has been described to me as ‘hated,’ and a member of a state human rights commission has called it draconian,” said Heyns, who traveled through Kashmir and the states of Gujarat, Kerala, Assam and West Bengal for two weeks ahead of Friday’s press conference. He is set to draft a report with his findings and his final recommendations, which he will present to the UN Human Rights Council next year.

Activists and critics say AFSPA has long allowed human rights abuses to go unchecked.
Noting that India’s National Human Rights Commission is also in favor of its repeal, Heyns challenged the constitutionality of the special powers act.

In addition, the other laws that are not in conformity with the international standards, including the Code of Conduct on Extrajudicial Executions, should also be repealed. In this regard he pointed to J&K Public Safety Act, Jammu and Kashmir Disturbed Areas Act, 2005, Section 197 of the Code of Criminal Procedure Act, provisions of Unlawful Activities Prevention Act, 1967 and the Chhattisgarh Special Public Security Act, 2005.

“The main finding in my report is that despite constitutional guarantees and a robust human rights jurisprudence, extrajudicial killings continue in India and it is a matter of serious concern,” Heyns said.

However, he maintained that the state has the right to defend itself against the violence perpetrated by Maoists, insurgents and militants. “The state has the right to act against them provided it abides by the international standards in this regard. The state however, cannot adopt unlawful or unconstitutional means or create a vigilance force to counter such violence,” he observed.

In the face of allegations of fake encounters and mass graves in the Valley, Heyns has recommended that as a counter to impunity for extrajudicial executions, where the police cause the death of a person in an “encounter”, the registration of FIR under Section 302 against the police should be made mandatory. It should be followed by an independent investigation of the matter and it should be left to a competent court to decide whether the police acted in self-defense or committed culpable homicide.

Yet, in another significant recommendation the UN official has said that the National Human Rights Commission should be given the mandate to investigate the actions of the armed forces. There should not be a year cut-off date on such cases which they can consider, he suggested.

Seeking a greater role for UN, he said that the practice of inviting UN special procedures be continued particularly in areas where international concerns have been expressed. These relate to torture, counter-militancy measures and minority rights.

However, Heyns was defensive when asked if the views and opinions that he came across in Jammu were compatible with the expressions he heard in the Valley. “The civil society in both the places was concerned about the abuse of power by the official machinery,” he observed.

Commenting on the use of force by the “state actors”, he said that due to “disproportionate” use of force during demonstrations in the Valley had resulted in the death of over 100 youth in 2010. In comparison in Delhi and elsewhere many demonstrations take place without bloodshed. He rued that a practice of “fake encounters” has developed in parts of the country.

Those killed are then portrayed as aggressors who had first resorted to opening fire and the police escape legal action,” he further observed.
Prevalence of communal violence, encounter killings, custodial deaths, ‘honour’ killings and plight of dalits and adivasis are other areas of concern mentioned in the report.

In the report, Heyns proposed a number of provisional steps to be taken to address these concerns, including the establishment of a Commission of Inquiry, consisting of respected lawyers and other community leaders.

“India also should ratify a number of international treaties, including the Convention Against Torture and the International Convention for the Protection of All persons from Enforced Disappearance,” he said.

Source: South Asian News Agency ( 31/03/2012