UN Special Rapporteur on Extra-judicial summary or arbitrary execution presents report on India mission

IMPHAL, May 6: The final report on the official visit of the UN Special Rapporteur on Extra-judicial summary or arbitrary execution Christof Heyns to India from 19 to 30 March 2012 has been released according to a press statement from the Civil Society Coalition on Human Rights in Manipur and the UN (CSCHR).

CSCHR had earlier submitted a comprehensive memorandum on fake encounter killings in Manipur to the UN envoy when he met with civil society organisations, human rights defenders and victims' families in Guwahati on 28 March 2012.

The Special Rapporteur said in his report that the level of extrajudicial executions in this country raises serious concern and impunity presents a major challenge in India. This includes deaths resulting from excessive use of force by security officers, and legislation that is permissive of such use of force and hampers accountability. Vulnerable persons, including women, are at particular risk of killing.

In the Special Rapporteur's view, "The situation regarding the use of force in India is exacerbated by what in effect though not in law could constitute emergency measures. In this regard AFSPA, enacted in 1958, regulates instances of use of special powers by the Armed Forces in so-called "disturbed areas" of the country. In order for AFSPA to be applied in an area, the area must be defined disturbed or dangerous to the extent that the use of armed force is deemed necessary. AFSPA first found application in the north-eastern States of Manipur and Assam as a way to address the continued unrest in the area, and was also extended to other areas, including in Arunachal Pradesh, Meghalaya, Mizoram, Nagaland and Tripura. In 1990, the Jammu and Kashmir Armed Forces (Special Powers) Act, containing nearly identical provisions to those stipulated in AFSPA, was enacted in Jammu and Kashmir.

It continued further saying, 'AFSPA provides wide-ranging powers to the Indian armed forces in respect of using lethal force in various instances, and fails to provide safeguards in case of excessive use of such powers, which eventually leads to numerous accounts of violations committed in areas where AFSPA is applied.'

The Special Rapporteur drew attention to two main concerns:firstly regarding AFSPA provisions regulating the use of lethal force by pointing out that they clearly violate the international standards on use of force, including lethal force, and the related principles of proportionality and necessity.

"Secondly, Section 6 of AFSPA and 7 of the Jammu and Kashmir AFSPA, grant protection to the  officers acting under these Acts and stipulate that prosecution of members of the armed forces is  prohibited unless sanction to prosecute is granted by the central Government. Sanction is rarely  granted in practice.

The release continued further: "The Supreme Court of India ruled in 1997 that AFSPA did not violate the Constitution. The Special Rapporteur is unclear about how the Supreme Court reached such a conclusion. The Special Rapporteur, however, notes that in the same case the Supreme Court declared as binding the list of "Do's and Don'ts" elaborated by the Armed Forces, and containing a series of specifications on the manner of applying AFSPA in practice. Although the list contains more precise guidelines on the use of lethal force under AFSPA, the Special Rapporteur believes that they still fail to bring AFSPA in compliance with the international standards in this regard.

"In the Special Rapporteur's view, the powers granted under AFSPA are in reality broader than that  allowable under a state of emergency as the right to life may effectively be suspended under the Act and the safeguards applicable in a state of emergency are absent. Moreover, the widespread deployment of the military creates an environment in' which the exception becomes the rule, and the use of lethal force is seen as the primary response to conflict. This situation is also difficult to reconcile in the long term with India's insistence that it is not engaged in an internal armed conflict.