India’s weapons against itself | WPN World People News

"Governments have to be realistic and effective in fulfilling their responsibility of providing protection to their people." That is quoted from the State of India’s response to the United Nations' Special Rapporteur on extrajudicial, summary or arbitrary executions' report (full text of the Rapporteur's report available here) after his visit to India. This statement was referring particularly to the use of force by India’s security forces in light of terrorist threats. National security has become an increasingly convenient catch phrase. Yet, one should be cautious about the role of government and the boundaries it entails. Being realistic does not give governments the allowance to underperform its responsibility, and being effective does not give governments the right to undertake illegitimate means in the name of its end goal, regardless of the ends involved.

The Rapporteur has acknowledged in his report that there has been a general drop in unlawful killings in India in recent years and recognised the challenges that India faces in ensuring the protection of fundamental rights of the Indian citizen, including but not limited to the right to life. These are points that the State of India has agreed with in its response (full text of the response is available here). Yet, when the text of that response is read in full, the attitude of the State of India concerning the protection of the fundamental rights of its citizens is rather disconcerting. Very defensive in its response, the State of India denied the culture of impunity and disputed the role that the Armed Forces (Special Powers) Act, 1958 (hereafter known as AFSPA) has had in cultivating such a culture.

What then does the State of India think is the challenge in its efforts to protect the basic rights of its people? One could go so far as to say that it is its greatest enemy because it is self-defeating in its efforts.

It is a universal and constitutional right for every Indian to enjoy the right to life. Yet, in the governance of "disturbed areas" where the AFSPA extends the jurisdiction and liberty of the armed forces, this fundamental and equal right is violated. The AFPSA was put in place to engage the armed forces to protect the police from insurgents in these "disturbed areas". For this purpose, the nature of the legislation should be temporal, not just in writing but also in application, and the classification of these areas as "disturbed" should be periodically reviewed, assessing the reasons why such classification is required.

Mere acceptance of a provinces request to the union government, verified only on the basis of reports filed by security agencies, that enjoys statutory impunity by virtue of the AFSPA, is irresponsibility in decision making. This is evident in states like Manipur. A lack of clearly defined boundaries in the additional powers granted to the armed forces coupled with prolonged application has resulted in the AFSPA aggravating the conflict in these "disturbed areas", instead of improving it.

Section 4 of the AFPSA provides:
“Any commissioned officer, warrant officer, noncommissioned officer or any person of equivalent rank in the armed forces may, in a disturbed area,

(a) if he is of opinion that it is necessary so to do for the maintenance of Public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area…”

Section 6 of the AFSPA provides the following protection to these officers:
No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

With provisions in Sections 4 and 6 of the AFSPA that grant these officers greater liberty and immunity - this legislation effectively arms these officers with the physical weapons and the license to kill, with a safety net to prevent them from being charged even if they abuse that authority. Instead of protecting the police from insurgents in their line of duty, the AFPSA has enabled the armed forces to team up with the local police and exploit this legislation against the civilians.

The abuse of the liberty and immunity that they are granted has given these officers greater rights with lesser responsibility. This authorisation of lethal force is in direct conflict with the individual's right to life, particularly the civilian right to life in this case. In Writ Petition (Criminal) no. 129 of 2012 Extrajudicial Execution Victim Families Association (EEVFAM) and Another (Petitioner(s)) against Union of India and Another (Respondent(s)) (hereafter known as EEVFAM v Union of India) (full text available here), the Supreme Court of India has stated that “the life of a policeman or a member of the security forces is no less precious or valuable than any other person”. Yet, the fundamental “right to life, liberty and security” in Article 3 of the Universal Declaration of Human Rights is violated, and it seems that lives of civilians are at the mercy of the police and security forces.

The State of India has disputed the findings of the Rapporteur, citing the allegations that he received as “sweeping generalisations based on anecdotal and unverified allegations”. Yet the Supreme Court of India has observed that the State of Manipur’s complete denial of the allegations made in the EEVFAM v Union of India case, relating to extrajudicial executions in Manipur, “seems to be an attempt to forestall any examination of the matter by Court”.

In its response to the Rapporteur’s report, the State of India has claimed that “it is an affront to judicial system to say that has wrongfully held to be constitutional”. Yet, giving such liberty to the officers negates the premises of fair trial since the code of law is no longer independent, which is a primary obligation of the state, bounded by constitutional and international law. Is that not unconstitutional? Moreover, the right to fair trial is violated because the suspect is assumed to be guilty, even if there is no reasonable evidence to support the officer’s intuition to fire even to the causing of death.

Instead of proceeding to put these officers on trial for allegations of abuse of their power under the AFSPA, monetary compensations are often given to victims and their families as a remedy. Substituting accountability with such a practice encourages further abuse with impunity and effectively renders the state as complicit in the crimes of these police and armed forces - the very accusation which the State of India has denied.

It claims that its “active and watchful judiciary has played an important role in upholding fundamental rights, including the right to life”. How has that been practiced if there is a lack of safeguards to ensure that the powers under AFSPA are not abused, a lack of accountability, and blatant violation of the right to life and the right to fair trial has happened - how can the State of India claim so boldly that its judiciary has played such an honorable role?

Even if the judiciary is indeed active and watchful, judicial activism does not suffice as a defense against these allegations because it cannot guarantee the responsibility of the police in the application of the law. As seen in the D.K. Basu v State of West Bengal case, even with a comprehensive set of requirements in place for all cases of arrest or detention in addition to the constitutional and statutory safeguards to protect the rights and dignity of the arrestee, the fact that arrestees are still withheld of their rights in reality illustrates the importance of commitment to proper application of the code of law.

There is a strong sense of denial about the challenge that India is facing in its efforts to protect the basic rights of its people - it is not fully committed, not transparent, nor does it employ foresight about the necessary course of action required. Underneath it all, the misplaced priorities in the country with regard to its people need to be clarified and corrected to truly understand the challenges it faces before effective remedy is possible. It is necessary to repeal the AFSPA because it feeds the corruption, impunity, and injustice that plague the country. How realistic or effective the government of India has been in fulfilling its responsibility of providing protection to its people is a question that it needs to answer for itself.

Source: Asian Human Rights Commission