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Examining the reality of the UN human rights report on India

Author: UC Jha
Publication: DNA India.com
Date: July 5, 2018
URL:      http://www.dnaindia.com/analysis/column-examining-the-reality-of-the-un-human-rights-report-on-india-2633301

The June 14, 2018, report of the Office of the UN High Commissioner for Human Rights (OHCHR) has given rise to fears about the situation of human rights in India, particularly in J&K. The UN Report, referring to AFSPA (J&K), has alleged that section 4 of the Act, which allows army personnel to use lethal force not only in self-defence but also against any person violating laws or orders, contravenes several international standards on the use of force and related principles of proportionality and necessity. Further, section 7 of this Act gives security forces virtual immunity against prosecution for any human rights violation; and in the nearly 28 years that the law has been in force, not a single prosecution of armed forces personnel has been granted by the Central Government. The UN report is also critical of the legal system of the central police forces (CPF) and states that “to some degree, the processes are less defined in the laws relating to these forces, thus providing for greater ambiguity in the administration of justice within these security forces”.

Further, according to the UN report, the authorities in India have failed to independently investigate and prosecute allegations of sexual violence by security forces personnel. It has also made a reference to the 2005 Reddy Committee report, wherein the committee had mentioned that the AFSPA had become “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness”. The report has also adversely commented upon the military justice system and the powers granted to the Armed Forces Tribunal while dealing with petitions against the findings and sentence of court martial.

The special powers to the Indian armed forces in dealing with internal security situations under the AFSPA is similar to what has been granted to the armed forces in Australia, Belgium, the UK, the US, and elsewhere. In India, the instructions issued to military commanders are explicit and comprehensive. They provide that in case commanders decide to open fire, they must: (a) give warning in the local language that the fire will be effective; (b) attract attention before firing by bugle or other means; (c) control fire by issuing personal orders on both the ‘number of rounds’ to be fired and the ‘object to be aimed’ at; (d) cease firing immediately once the object has been attained; (e) take immediate steps to secure the wounded; and (f) ensure a high standard of discipline. These rules of engagement have approval of the Supreme Court.

The Indian Army’s human rights record is one of the best in the world, which is appreciated globally. The Army had received 1,736 allegations, primarily during counter-insurgency operations in J&K and north-east, in the period stretching from 1994 to April 2017. Of them, 1,695 cases have been probed till now, while the rest 41 are under investigation. Of the cases investigated, 1,629 were found to be either false or baseless. In the 66 cases found to be correct and true, 150 personnel were punished and compensation was awarded in 49 cases. In J&K, only 31 of the 1,022 allegations that were investigated between 1994 and May 2018 were found to be true. Around 70 personnel have been punished. Another 20-30 cases are being investigated.

In most of the democratic countries in the world, including India, forces submit men to their own law as laid down in their military laws. The law under which military personnel may be prosecuted in India is more stringent than those in a large number of democracies. The Central Government has therefore rejected sanction to the J&K government for prosecution of military personnel in 47 of the 50 cases submitted since 2001. In the other three cases, decision is still pending. The legal system of the Central Police Forces is also well defined and contained in Acts and Rules. There is no ambiguity in the system.

The Armed Forces Tribunal is a judicial body, functioning independently under the supervision of the Supreme Court. The action of the Tribunal to grant bail to a military accused is within the power granted to it under Section 15 of the Act. The findings of the Reddy Committee have been selectively quoted in the UN report, which failed to mention other parts of the report: “...though an overwhelming majority of the citizen groups and individuals pleaded for the repeal of the Act, they were firmly of the view at the same time that the Army should remain to fight the insurgents.”

There is no doubt that the non-state armed groups (NSAGs) in J&K have committed a range of crimes, including kidnappings, killing of civilians and sexual violence. There is ample evidence to show that these NSAGs have been trained and armed by Pakistan. However, the UN report fails to take cognizance of this. Para 29 of the UN report states that since it was not possible to directly verify allegations, the findings were arrived at using a “reasonable grounds” standard of proof. One does not expect a report by a UN body to rely on allegations that are not supported by evidence. The UN report undermines the United Nations-led consensus on zero tolerance against terrorism and fails to see the actions taken by India in this context.

- The writer is a retired Wing Commander. Views are personal.
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