INDIA: India’s domestic and international human rights obligations are incompatible with the Armed Forces Special Powers Act, 1958

HUMAN RIGHTS COUNCIL

Twenty-third session, Agenda Item 3, Interactive Dialogue with Special Rapporteur on extrajudicial executions

A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

“The present case appears to be one where two persons along with some others were just seized from a hut, taken to a long distance away in a truck, and shot there. This type of activity cannot certainly be countenanced by the courts even in the case of disturbed areas. If the police had information that terrorists were gathering at a particular place and if they had surprised them and arrested them, the proper course for them was to deal with them according to law. ‘Administrative liquidation’ was certainly not a course open to them.” People’s Union for Civil Liberties (petitioner) against Union of India (respondents) 1997 (3) SCC p.433.
The Supreme Court of India made this observation 16 years ago. The Court referred to the jurisprudence when yet another petitioner, the Extra Judicial Execution Victim Families’ Association, from Manipur approached the Court seeking its intervention demanding justice for persons the association alleges have been arbitrarily executed by the state in Manipur, and in the process, to end impunity enjoyed by the state forces in that state. The sheer fact that victim-families have to form an association to seek justice, and ask their government to stop killing people, is the one of the lowest points in India’s independent history.
In (Criminal) Writ Petition 129 of 2012, the petitioner alleges that, between May 1979 and May 2012, 1528 persons were killed in extrajudicial execution in Manipur. The petitioner filed in court two lists, in which details of 51 cases are provided, which the petitioner alleges is proof to the fact that extrajudicial execution is widespread in the state.
The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, during his mission to India, held from 19-30 March 2012, heard several cases and met relatives of the victims of extrajudicial executions in India. In particular, the Rapporteur met relatives of victims of extrajudicial execution from the state of Manipur, where the notorious Armed Forces Special Powers Act, 1958 is enforced.
The Act, AFSPA in short, has claimed so far several lives, of which neither the Government of India, nor the civil society in the country has an exact number. It is a legislation enforced not just in Manipur, but seven other states in India, including the state of Jammu and Kashmir. The Rapporteur in his report, A/HRC/23/47/Add.1, has devoted considerable space to elaborate the nonconformity of AFSPA to India’s international as well as domestic human rights obligations, as well as to the country’s constitutional scheme, fundamental rights guarantees in particular.
The Asian Legal Resource Centre (ALRC) and its partner organisations in India, like the Human Rights Alert in Manipur, have been calling upon the Government of India to repeal this law. Even the Government of India sponsored committee, like the Justice B P Jeevan Reddy Committee has recommended the thorough review this law, to make it more humane, a commitment, the incumbent Prime Minister of India, Dr. Manmohan Singh has assured to the people of India, as early as in 2004. The United Nations and its manifold mandates, including the High Commissioner for Human Rights, Ms. Navanethem Pillay, has reiterated the same sentiment, terming the Act ” … outdated and [a] colonial-era law that breach [sic] contemporary international human rights standards.”
The litigation currently before the Supreme Court of India, filed by the Extra Judicial Execution Victim Families’ Association is yet another attempt, on one hand to rekindle the belief of the people of India in its justice apparatuses, that they trust would intervene and help them in expediting a process of repealing this draconian legalisation, and on the other hand seeking justice for the lives lost in Manipur, to this law.
The Supreme Court constituted an independent commission to inquire the allegations levelled by the petitioner in the case. The commission has completed its inquiry and has filed its report in court. The Court has accepted the report into records, and has concluded that the essence of the allegations made by the petitioners in the court are prima facie true, once again affirming, that the AFSPA is incompatible with India’s human rights obligations.
In the above context, the ALRC recommends the Human Rights Council to:
1. Once again, urge to the Government of India to repeal the AFSPA;
2. Encourage the government to undertake independent investigations into allegations of extrajudicial executions reported, from the states were the AFSPA is implemented;
3. That such investigations are undertaken by an independent agency, and in instances where the allegations of extrajudicial executions or other forms of custodial violence are reported the officers responsible are prosecuted;
4. Recommend the Government of India to award adequate compensation to the victims of state excesses in states where the AFSPA is implemented.