Posts Tagged ‘The Armed Forces (Special Power) Act 1958’

10 Reasons Why AFSPA Must Go

February 6, 2015

Repeal-AFSPA

10 Reasons Why the Armed Forces (Special Power) Act, 1958 (AFSPA) Must Be Repealed

By Waliullah Ahmed Lashkar,

1. A draconian law: The AFSPA is a piece of colonial legislation that gives the armed forces of India unfettered power: (i) to use lethal force on civilians even to the extent of causing death on mere suspicion that they may cause breach of any law or order, (ii) to search any dwelling places by breaking them on mere suspicion without warrant and (ii) to arrest people without warrant and to keep them in custody for unspecified time and more importantly the Act also bars the judiciary to question any acts of the armed forces operating under the Act in areas declared disturbed under the Act.

2. Its continuance is based on lies: The Government of India took the plea that it is a temporary measure for meeting an extra-ordinary situation and it would be withdrawn as soon as possible. This plea was taken in parliament when the Act was being passed, in the Supreme Court in the Naga People s Human Rights Movement case in 1997 and in international forums including the United Nations Human Rights Committee. It is now 53 years in North East and 21 years in J & K. If a measure for this length of time is temporary than what is permanent?

3. The provisions of the Act militate against the purpose of its enactment: The non-state armed groups (insurgents, extremists or terrorists, whatever you may call them) need to be dealt with and contained because they violate rights of the people to live peacefully, they try to impose their will on the people and the state unlawfully and violently trampling the constitutionalism and the rule of law that are sine qua non for civilised human existence. It is the mandate of the state to maintain the reign of law and constitution and the writ of the government established by law along with ensuring security and safety of the person and property of the citizens. But when the state through its security forces and law enforcement agencies commits more atrocious acts than the acts which it professes it is fighting the difference between the non-state terrorists and the state gets blurred.The armed forces of India when operate under the AFSPA do not act for enforcement of the constitution and the law of the land or for protection of the life and property of the citizens. Because, they operate outside the constitutional and legal system of the land. The AFSPA places them above the constitution, law and human rights obligations. The AFSPA gives them the power to commit atrocities and wreak terror on the citizens which they are supposed to combat and prevent and protect the citizens from, with additional guarantee of immunity from any accountability. The mischief that is addressed in the statute is doubled by its provisions. To purportedly prevent the people from the terror of certain armed groups the sate itself has unleashed its unmatched terror upon the very people under the AFSPA. And it is not only in law but very much in practice.

4. Problematic political premises: The political premise of the Act appears to be very problematic in the sense that it seeks in essence to impose “Indian-ness” through violence on some of the people of the country who are deemed not to be adequately “Indian”. This is apparent from the facts that despite naxalism being claimed as the biggest threat to the national security the Act is not extended to the naxal affected central India. Rather, it is stated that the responsibility to deal with such problems rests with the state governments, which is very true. This discriminatory attitude can not be explained in any way other than the racial reading of the situations and believe in fascist violence. The “Indian-ness” as it was understood by our freedom fighters and for which they embraced martyrdom is not one which would needed to be or which could be imposed through violence. However, it should be more than clear that we are not seeking extension of the AFSPA to any other part of the country since we want total repeal of the Act. There are many draconian pieces of legislation in force in naxal affected areas, though not of the nature of AFSPA, such the Chhattishgarh Public Security Act etc. which are also needed to be repealed. The phenomenon called naxalism has arisen largely due to the deprivation, discrimination and exploitation of the tribal people of the area. These problems need to be addressed politically and through peaceful means.

5. A fraud on the constitution: The Act provides more than emergency powers to the armed forces fraudulently bypassing the provisions of the constitution of parliamentary oversight over the exercise of such powers. The constitution also imposes duties upon the Union Government to perform its obligations under the international treatises. India is a party to the International Covenant on Civil and Political Rights, 1966 (ICCPR) which provides for derogations of some the rights in times of emergency declared legally, which are nonetheless derogated by the Act without such declaration. It is to be noted that the Supreme Court did not examine the compatibility of the Act with the international human rights laws in the Naga People s Movement for Human Rights.

6. The law lacks legality: Both the procedural and substantial requirements of legality are conspicuous by their absence in this Act of the parliament. On the procedural level it is to be noted that the Act came not only as a product of a “decision” by the political executive (i.e., as an ordinance on 22nd May, 1958) but also subsequently escaped more or less unscathed from the “legislative oversight function” of a democratically constituted Parliament on 18 August, 1958. And finally, rather than returning the legislation to the Parliament again for reconsideration, the President readily gave his assent on the legislation, thus making it into a law on 11 September, 1958. On the substantial level the Act does not pass the test of precise definition as its terms are too vague and it also provides powers/measures disproportionate to the mischief it is intended to address.

7. Arbitrary application: Not only the framing of the Act and its provisions are arbitrary but also the application of the Act by declaring certain areas as disturbed is also arbitrary inasmuch as the declaration of areas which are not disturbed in the sense in which the term is contemplated in the Act. For example, the southern part of Assam comprising of the districts of Cachar, Karimganj and Hailakandi that is known as Barak valley is declared as disturbed area under the Act which can not be said disturbed in any meaning of the word. There has never been any insurgency in the area. And the former Prime Minister Indira Gandhi proudly declared it as Valley of Peace admitting the fact.

8. Recommendations of the government committees: Every government committee which examined the Act opined against its continuity in the present form including the Administrative Reforms Committee headed by Mr. Birappa Moily. Most importantly, the Committee to Review the Armed Forces (Special Powers) Act, 1958 chaired by Justice Jeevan Reddy unambiguously recommended total repeal of the Act.

9. Militarisation of democracy: The ethos and practices inaugurated, nurtured and sustained by the Act has led to critical erosion of normative (norms) and institutional mechanisms of a civilized democratic life which are critically manifest as (a) the near collapse of Criminal Justice System and (b) culture of impunity of unbridled violence in peoples life. The mockery of democracy is such that it can be termed as democracy at gun point.

10. Traumatised society: Actions taken under the Act caused hundreds of extra-judicial killings, rapes, torture, enforced disappearances forcing the people to live an uncertain terror-striken life bereft of human dignity. It has made the whole society mentally sick and traumatized.And on many other reasons.

The author is an advocate at Gauhati High Court and human rights defender with Barak Human Rights Protection Committee.

(The piece was first published by India Resist and is available at: http://www.indiaresists.com/10-reasons-why-afspa-must-go/#sthash.NmorAy2M.dpuf)

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Text of the Judicial Inquiry Report on torture and killing of Manorama Devi by the Assam Rifles

November 29, 2014

Thangjiam Manorama Devi was a Manipuri village girl who was brutally tortured and subjected to gruesome sexual violence before she was killed by a team of the para-military force Assam Rifles in 2004. The incident caused widespread outrage and anger and sparked public protest leading to a judicial inquiry into the matter. The report of the inquiry was never made public until this year when the Supreme Court of India asked for it in connection with hearing on a PIL seeking probe into custodial deaths in the north-east States. The report exposes the Assam Rifles efforts to cover up the incident by lodging false FIRs and trying to avoid inquiry by unjustifiably invoking the Armed Forces (Special Power) Act, 1958.

Thangjam Khuman Leima Devi, mother of Thangjam Manorama, at her residence in Imphal in 2004.

Thangjam Khuman Leima Devi, mother of Thangjam Manorama, at her residence in Imphal in 2004.

Here are a few highlights of the report as prepared by Krishnadas Rajagopal and published in The Hindu:

She was found dead with multiple gun shot injuries on her private parts and thighs at Ngariyan Yairipok Road, hardly two km away from a police station, states the report.

The judicial inquiry report on the murder of Thangjam Manorama, a Manipuri girl, in 2004, handed over to the Supreme Court recently after being kept under wraps for over a decade, reveals the “brutal and merciless torture” by a 17 Assam Rifles team.

The murder gave renewed impetus to calls for withdrawal of the Armed Forces (Special Powers) Act.

After a decade of remaining under wraps, the report by the Judicial Inquiry Commission graphically reveals the last hours of “brutal and merciless torture” Manipuri village girl, Thangjam Manorama, suffered at the hands of a team from the 17th Assam Rifles before she was shot dead.

The Manorama case led to widespread protests against the Armed Forces (Special Powers) Act (AFSPA) and spurred calls for a review of the law, especially by the Justice J.S. Verma Committee in 2013.

The report, submitted to the State government way back in December 2004, was never made public.

This week, the government handed it over to the Supreme Court. The court had demanded it as part of a hearing on a PIL seeking probe into custodial deaths in the north-east States.

“This is one of the most shocking custodial killing of a Manipuri village girl,” C. Upendra Singh, retired District and Sessions Judge, Manipur, who was Chairman of the Commission, wrote.

He describes how Manorama was picked up by “a strong-armed troops of 17th Assam Rifles” in the night between July 10-11, 2004 from her home in Imphal East District. She was found dead with multiple gun shot injuries on her private parts and thighs at Ngariyan Yairipok Road, hardly two km away from a police station.

The report details how the incidents of the night started with her younger brother, Thangjam Basu, watching the Hindi film Raju Chacha half past midnight, heard some noise outside. Within the next few minutes, the Assam Rifles party crashed into the house. The report said that Manorama, who was “clutching on to her mother Khumaleima”, was dragged out screaming “Ima Ima Khamu (mother, mother please stop them)”.

The report said she was tortured on her front porch, as the family watched. It said how Basu remembers hearing his sister’s “muffled and dimmed voice saying Ie Khangde (do not know)” to the troops’ questions. It said the men then took her away to “places”.

The report said that the two FIRs filed by the 17th Assam Rifles claimed she led them to recover Kenwood and Chinese grenades and an AK 47 rifle. It said she tried to escape and was shot in the legs. The FIRs claimed she had bled and died.

The Commission report blamed the police for leaving the investigation to the “discretion and mercy” of the Assam Rifles. It narrated how the Assam Rifles had invoked the AFSPA with the Enquiry Commission.

Mr. Singh said he countered that his enquiry was only a fact-finding exercise, and sanction under Section 6 of AFSPA would only come later when the personnel is found to have done wrong.

The Commission said not a single one of the 16 bullets fired at Manorama hit her legs. The report called the escape story a “naked lie.”

The report said most of the injuries would reveal that she was shot when “helpless”. It said some injuries suggest sexual assault too. The Commission had examined 37 witnesses.

Download full text of the report here.

56 years of AFSPA: Legalising Rule O’ Flaw

October 3, 2014

The 56 years of AFSPA has a deep impact upon the society of north east India that has now learnt to internalise militarisation and has negotiated life of arbitrariness under RULE O’ FLAW.

56 years of AFSPA: Legalising Rule O’ Flaw

By Anjuman Ara Begum

‘It was on the 11 September 1958 that the President of India signed the Act, and the same day 9/11 is observed as the anti-terrorism day world over, the struggle against state terrorism started on the same day for the inalienable civil, political and cultural rights of the peoples of Northeast India with the imposition of AFSPA 56 years ago…’. this was the reaction of civil society members gathered on September 11, 2014 at Guwahati to ‘celebrate’ the 56 years of Armed Forces (Special Powers) Act, 1958 (AFSPA, in short). AFSPA became law on September 11, 1958 after receiving assent of the president of India. It was promised to be a temporary measure. 56 years on, the Act is still in force despite several calls for its repeal and is still held strong by the armed forces an excuse for legalising repression and impunity calling it a ‘holly book’. Participating in the same gathering renowned human rights activist of the region Babloo Loitongbam, ‘if this is temporary measure then what it the meaning of permanent?’, a thought that provokes human conscience to rethink about AFSPA.

RULE OF LAW, a universally celebrated and adopted concept to counter arbitrariness and unreasonableness in law and practice. The concept dominates the law making process of today’s civilised and democratic countries. Soon after adopting a written constitution in 1950 with implicit guarantee of RULE OF LAW, the state of India continue to resort to repressive policies as well as practices. Following the colonial footsteps, the AFSP bill was passed in the parliament in August, 1958 after a brief seven hours debate. It was in the same year of 1958, India signed Universal Declaration of Human Rights, Geneva Conventions of 1948, Convention against Racial Discrimination and several others. State of India continued to reaffirm its commitment towards the protection and promotion of international human rights standards despite resorting to repressive policies and practices like AFSPA domestically.

Soon after becoming a law, AFSPA started concretising it’s existence. It’s application continued to be extended as well as it’s abuses. Needless to say that the Act has ‘normalised’ routine declaration of disturbed area, encouraged the practice of extrajudicial execution and reinforced the culture of impunity. Let’s us consider these three aspects.

Firstly, the extension ‘disturbed area’ status for north eastern states since 1955 has now attained the status of a mere routine administrative exercise. What constitute ‘disturbances’ is still not codified in legal literature. Even the judiciary ignored this aspect. In Naga People Movement for Human Rights vs. Union of India, AIR 1998 SC 431, it was simply said that the country understands what constructs a ‘disturbed area’. It was further decreed that there is no requirement that the Central Government shall consult the State Government before making the declaration. In fact, there are instances where state’s resolution against such declaration has been ignored. It is reported that Nagaland state assembly passed resolutions against the extension on four occasions and each time these resolutions have been ignored by the centre government. Tripura, a state often claimed as an example of successful counter insurgency measures still remained ‘disturbed’. Tripura hardly had any major armed encounter in recent years. Such back door declarations of emergency situation continued simultaneously when Government of India claimed internationally that there is no situation of armed conflict in the country.

Declaration of ‘disturbed area’ also means additional budget allocations. In a corrupt country like India, this aspect is important in the context of recurring extension of ‘disturbed area’ status. Parliament of India’s record suggests that the Government has been providing financial assistance. During the period of the year 2011- 2012 financial assistance was provided unde

The Invisible 9/11: 56 Years of AFSPA in the North East

September 11, 2014

September 11, 2014, Guwahati, Assam

 We the civil society groups from the all the seven sister States of North East India, having assembled in Gawahati on this day the 11th of September 2014 under the auspices of Centre for Research and Advocacy, Human Rights Alert, Manab Adhikar Sangram Samiti, WinG-India, North East Dialogue Forum, Borok People Human Rights Organisation, Barak Human Rights Protection Committee, People’s Right to Information and Development Implementing Society of Mizoram and deliberated upon by eminent personalities of the region like Prof. Apurba Kr. Baruah, Advocate Bijon Mahajan, writer and social activist Kaka Iralu, Dr. Prasenjit Biswas,Professor of Philosophy, NEHU, Babloo Loitongbam, Executive Director, Human Rights Alert, Anjuman Ara Begum, member, WinG-India and Prof. Akhil Ranjan Dutta among others on the various aspects of the imposition and continuance of Armed Forces Special Powers Act, 1958;

RESOLUTION

 Noting that it was on the 11 September 1958 that the President of India signed the Act, and the same day 19/11 is observed as the anti-terrorism day, the struggle against state terrorism started on the same day for the inalienable civil, political and cultural rights of the peoples of Northeast India with the imposition of AFSPA 56 years ago;

Outraged by the horrendous stories of atrocities committed by the armed forces of the Union, including aerial bombing, forced grouping and re grouping of villages, burning down of villages, enforced disappearances, extrajudicial executions, rape and other forms of sexual violence, torture and inhumane degrading treatment etc., under the impunity provided by the AFSPA.

Also outraged by the fact that rape and other forms of sexual violence has been used as an weapon of masculinise militarization under impunity provided by AFSPA.

Concerned that the AFSPA is increasingly used to gag and subvert the democratic voices against the unsustainable, predatory and anti-people mega dams and other development projects;

Deeply felt the need to liberate the upcoming generations from the inter-generational trauma inflicted by a militarized state of exception;

Encouraged by the fact that the various official Commissions and Committees set up by the Government of India has also unanimously recommend the repeal of AFSPA.

Having established that AFSPA violates the not only the international human rights standards but even the international humanitarian law India should uphold its international obligations to emerge as a major power on the world stage

  1. To take up intensive mobilization of the masses of NE to oppose this draconian law and the struggle against the draconian AFSPA by linking up with other peoples’ movements in the region.

 

  1. To constitute a NE platform for a broader coordination and coalition of various human rights groups, civil society groups, peoples’ movements at both regional as well as at all-India level by going beyond ethnic, tribal and community affiliations;

 

  1. Lobby with the MPs from NE region as well as other sympathetic parliamentarians to facilitate procedural and substantive actions to repeal AFPSA at the earliest.

DIGEST OF INTERNATIONAL JURISPRUDENCE ON THE PROTECTION OF HUMAN RIGHTS WHILE COUNTERING TERRORISM

June 16, 2012

The non-state armed groups (insurgents, extremists or terrorists, whatever you may call them) need to be dealt with and contained because they violate rights of the people to live peacefully, they try to impose their will on the people and the state unlawfully and violently trampling the constitutionalism and the rule of law that are sine qua non for civilised human existence. It is the mandate of the state to maintain the reign of law and constitution and the writ of the government established by law along with ensuring security and safety of the person and property of the citizens. But when the state through its security forces and law enforcement agencies commits more atrocious acts than the acts which it professes it is fighting the difference between the non-state terrorists and the state gets blurred.

Since independence in 1947 as in colonial times India has a number of laws containing provisions that are termed by the liberal jurists and human rights defenders as draconian and repressive unparalleled in the democratic world. Such laws are held responsible for regular violations of human rights with impunity resulting in defeat of the rule of law and continuity of lawlessness breeding more terrorism and violence. Despite this reality there is also a shrill voice for more stringent laws in the country.

Even before the terrorist attack in Mumbai on 26 November, 2008 the demand for “stronger and tougher anti-terror laws” kept getting shriller and hasher and was being projected as panacea. It started after the present parliament repealed the Prevention of Terrorism Act, 2002 (POTA), although some provisions of POTA incompatible with human rights laws were incorporated into the Unlawful Activities (Prevention) Act, 1967 (UAPA) by way of amendment. The discourse of ‘tough’ laws is premised entirely on the misrepresentation of facts. It seems that the advocates of ‘tough’ laws want us to believe that there were no terrorist attacks in India when some of the “toughest” (read most draconian) laws in the civilised world were in force such as the Armed Forces (Special Power) Act, 1958 (AFSPA) and its other local variants; the National Security Act, 1980 (NSA); the Terrorist and Disruptive Activities Act, 1987 (TADA); POTA; UAPA and other state enactments. But the reality is that some of the worst terror offences were perpetrated when these “stronger and tougher anti-terror laws” were in force such as hijack of an airIndia flight from Kathmandu to Kandhahar, Red Fort attack, parliament attack etc.

New law becomes necessary when existing provisions are proved ineffective or counter effective. There are still many draconian and colonial provisions in our general criminal law composed of the Indian Penal Code, 1860 (IPC), the Criminal Procedure Code, 1973 (CrPC) the Evidence Act, 1972 and others. Records of implementation and effective implementation of laws in India is very dismal due to many factors including corruption and inadequacy in both quantity and quality of man-power in the Criminal Justice Administration System and the inefficacy of some of the provisions of law themselves. With registration of First Information Report the justice administration machinery gets into motion. There are hundreds of thousands of cases where police does not register FIR without being greased. It has become the rule in some part of the country. There are also numerous cases of custodial torture and death for not paying gratification by the detainee/arrestee or their relatives to the police. When the state of the things is this it is ridiculous to think that “stronger and tougher anti-terror laws” will free us from crimes and criminals, let alone the question of terrorism.

Terrorism is the worst form of crime. It is just a matter of common sense that the people who love to kill and get killed would not have any fear of law howsoever “tough” and “strong” that law may be. Soon after the terrorist attack in Mumbai, Barak Human Rights Protection Committee (BHRPC) reminded that “it has been seen that in countering terrorism the state often succumbs to the design of the terrorists by failing to respect the human rights of the people. When this happens the terrorism triumphs because the state itself does the act of terror. More over, failure to respect human rights creates breeding ground of terrorism” in a statement issued to condemn the attack. Counter terror laws and practice violating human rights are used by the terrorists to justify their heinous acts and the state cites these terrorist acts to justify its acts of violations of human rights. In the process the ordinary human beings are just sandwiched between state and non state terror. These two forms of terrorism feed on each other and are same for general population.

Unfortunately the Indian State has succumbed to the terror design and gave them the triumph after the Mumbai attack. A bill has been passed amending the UAPA after the November attacks in Mumbai which violates international human rights treaties.

New amendments to anti-terror laws include: 1. Sweeping and overbroad definitions of “acts of terrorism” in violation of the principle of legality, 2. No clear and strict definition of what constitutes “membership” of a “terrorist gang or organization” also violate the principle, 3. Minimum period of detention of persons suspected to be involved in acts of terrorism extended to 30 days from 15 days and the maximum period of detention of such persons to 180 days from 90 days – already far beyond international standards, 4. Denial of bail to foreign nationals who may have entered the country in an unauthorised or illegal manner, except in very exceptional circumstances, also violates international human rights standard, 5. The requirement, in certain circumstances, of accused people to prove their innocence, is in violation of basic principle of universal criminal jurisprudence and natural justice.

Another new legislation has been passed constituting the National Investigating Agency which, inter alia, authorises special courts to close hearings to public without defining or limiting the grounds under which they may do so. This is also in violation of the due process principle.

While introducing the bill for amendment of the UAPA, the government took plea in the preamble of the bill that it is bound under several international instruments to combat terrorism specifically citing some select United Nations Security Council Resolutions such as1267 (1999), 1333 (2000), 1363 (2001), 1373 (2001), 1390 (2002), 1455 (2003), 1526 (2004), 1566 (2004), 1617 (2005), 1735 (2006) and 1822 (2008). But ignored the dictum of the resolution 1535 (2004) adopted by the Security Council at its 4936th meeting, on 26 March 2004 which reminded the “States that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law”. More over, there are many international instruments acceded or ratified by India which put the state under obligation to adhere to the human rights norms in all its activities including counter terrorism.

When POTA was repealed by the government most of the resolutions cited were in existence. Citation of these resolution and invoking international obligations are nothing but taking recourse to false plea. A look into the jurisprudence of the united nations and regional organizations on the protection of human rights while countering terrorism would show the hypocrisy of the Indian State so far its invocation of the international obligations is concerned.

In this background the digest on terror jurisprudence complied by the Office of the High Commissioner of Human Rights of the United Nations is a necessary tool for the human rights defenders, lawyers, academics, law-enforcement officials. law-makers, policy makers etc. The digest can be downloaded from here.

UN recommends repeal of AFSPA

June 4, 2012

The Working Group of the United Nations’ Human Rights Council (HRC) on 30 May 2012 adopted the draft report on India’s Universal Periodic Review (UPR). Among their various recommendations, the 80 UN member states also recommended the repeal of the Armed Forces Special Power Act, 1958 (AFSPA).

UPR, a peer review process of human rights records of all UN member states, took place on May 24, 2012 in Geneva where India’s entire human rights record was examined thoroughly by other UN member states.

The government of India’s oral response during the UPR session was marked by a general lack of acceptance of human rights challenges in the country and a mere reiteration of domestic laws, policies and constitutional provisions. Eighty countries participated in India’s UPR and made a total of 169 recommendations on a whole range of critical human rights issues. Recommendations made to India include: prompt ratification of the UN convention against torture and the UN convention on enforced disappearances, repeal or review of the AFSPA, the Prevention of Communal and Targeted Violence Bill, comprehensive reforms to address sexual violence and all acts of violence against women, improve human rights training to police officers, abolishing death penalty, banning all forms of child labour, etc. India declined to comment on any of these 169 recommendations at the HRC review meet.

The government of India decided to examine all the recommendations back in the capital and respond to them prior to the plenary session of the HRC in Geneva in September 2012, when it will take a stand on recommendations. Miloon Kothari, convener of Working Group on Human Rights (WGHR), said: “We look forward to a constructive response from India as it formulates responses to the many useful suggestions that are contained in the document adopted by the UN on May 30, 2012. These responses from India should be formulated after thorough consultations with the Parliament, human rights institutions, civil society and independent institutions”.

The WGHR is a platform of human rights groups and individual experts working with the UN human rights mechanism form India. The group took active part in the UPR process with a separate stakeholders’ report on human rights situation India that was prepared through consultations with several human rights organisation and independent experts. The Barak Human Rights Protection Committee also participated in the process.

Constructive engagement elusive at India’s Second UPR at the UN

May 31, 2012

India dodged recommendation for repeal of AFSPA

New Delhi, May 29, 2012 – India’s human rights record was reviewed by the UN Human Rights Council (HRC) under the mechanism of the Universal Periodic Review (UPR) on 24 May 2012 in Geneva. The review was marked by a general lack of acceptance of human rights challenges in the country and a mere reiteration of domestic laws, policies and Constitutional provisions by the Government of India (GoI). Regrettably, the answers of the government did not address critical issues related to gaps in implementation of laws and enjoyment of rights, with India’s Attorney General (who led the government delegation) stating in his opening address that, “India has the ability to self-correct”. According to Miloon Kothari, Convenor of the Working Group on Human Rights in India and the UN (WGHR): “By employing a defensive and largely selfrighteous position at the HRC, GoI has, at least in its initial response at the HRC, once again lost the opportunity to constructively engage with the UN human rights system and in accepting the enormous human rights challenges it is faced with.”

Of the eighty countries which participated in India’s UPR – a peer-review process of the human rights record of all UN member states – many reiterated the recommendations made during India’s first UPR in 2008 to ratify the UN Convention against Torture (CAT) and the Convention against Enforced Disappearances (CED). GoI accepted both recommendations four years ago but they have remained unfulfilled. On the question of torture, GoI referred to the Prevention of Torture Bill (PTB), which is pending before Parliament, without commenting on the non-compliance of the PTB with CAT’s definition of torture. WGHR regrets that GoI left many questions unanswered, including desisting from commenting on the ratification of CED.

WGHR is also disturbed thatIndiadodged the recommendations for repeal and review of the Armed Forces Special Powers Act (AFSPA) by referring to the Supreme Court’s upholding of its constitutionality and by citing Army’s human rights cell as a redressal mechanism. Ms. Vrinda Grover, human rights lawyer and member of WGHR, expressed serious concerns at GoI’s misleading response to the HRC, which camouflaged the systematic impunity enjoyed by armed forces for human rights abuse in the Northeast of the country and Kashmir: “The refusal and reluctance of GoI to squarely address the issue of impunity under AFSPA, in spite of numerous recommendations by international bodies, government appointed committees and UN Special Rapporteurs is unacceptable in a country that proclaims to be the largest democracy in the world.”

Strong recommendations were made toIndiaon the need to impose a de jure moratorium on the death penalty. The government’s response, that simply cited its de facto policy of awarding death penalty in the ‘rarest of rare cases’, is also deeply unsatisfactory in light of statistics that show an increase in the number of death sentences awarded by the courts.

There were recurring concerns by many states on the enjoyment of the right to freedom of religion and belief, anti-conversion laws and targeting of religious minorities. Surprisingly, while GoI has initiated a Communal Violence Bill to address the issue of violence against religious minorities, it expressed uncertainty before the HRC for the need for such a law. The Indian government’s insistence at the international level that existing laws and judicial decisions are sufficient to deal with egregious violations such as torture and attacks on religious minorities is very disappointing, when new laws on these issues are being debated at the national level.

On the multiple recommendations it received on the need to ratify the Optional Protocol (complaint mechanism) to the Convention on the Elimination of Discrimination against Women (CEDAW), India once again stated that its domestic legal remedies were adequate to address gender-based discrimination. Many states also recommended withdrawal of GoI’s reservation to Article 16 of CEDAW – which guarantees non-discrimination in all matters relating to marriage and family life – and emphasized the need to enact a comprehensive anti-discrimination law. WGHR deeply regrets the fact that GoI did not engage substantially with recommendations made on issues relating to women, including maternal mortality, prenatal sex selection, infanticide, sexual and gender-based violence, political participation of women, sexual harassment at the workplace, early/child marriage, harmful traditional practices, honour crimes, and trafficking.

Sadly, GoI failed to use the UPR as an opportunity to demonstrate its commitment to bridge the gap between the law and the grim statistics on various forms of gender-based violence. Its tendency to rely upon domestic law repeatedly to explain the multiple challenges to the attainment of gender equality is disquieting, especially when access to justice remains a barrier for many, and several domestic laws are inconsistent with the universal standards on sex equality.

WGHR, however, welcomes GoI’s positive shift on the issue of homosexuality, which was raised by many countries. The government affirmed its support of the High Court of Delhi judgment decriminalizing homosexuality and stated that it would take a sensitive view of the matter that has been appealed in the Supreme Court.

The human rights of children received significant attention at the HRC. States repeatedly raised issues related to child mortality, child labour, child sexual abuse and trafficking. Many governments stressed the need for a reduction of the excessively high rates of maternal and child mortality and urged the fulfillment of the Millennium Development Goals in that regard. It was also recommended thatIndiaratify the Third Optional Protocol (establishing a communications procedure) to the Convention on the Rights of the Child. A notable number of states also reiterated the need to ban all forms of child labour. The GoI stated that it was “fully conscious of issues pertaining to child labour” but that there was “no magic wand to address it”. This stand is oblivious to the fact that the legal scenario in the country has changed as being at school and not at work is now a fundamental right for all children from 6 to 14 backed by a powerful Right of Children to Free and Compulsory Education Act. The logical corollary of this change is for GoI to revisit its stand and amend the Child Labour (Prohibition and Regulation) Act.

Given the scale of poverty and large-scale denial of socio-economic rights in India, the insufficient attention given to economic, social and cultural rights at the UPR – with the exception of health and education – was disturbing. WGHR hopes, however, that references by member states to the need for more attention to housing for low-income groups and reduction of slums; more focus on poverty alleviation; removal of rural and urban inequities; and improvement of access to water and sanitation, will be turned into recommendations by the HRC before the adoption of the outcome document on Wednesday 30 May, 2012

On the critical issue of the right to adequate and nutritious food, it is disturbing that GoI has dismissed the need to universalise the Public Distribution System, which operates on the basis of an unrealistic poverty line and excludes genuinely poor rural households due to targeting errors, corruption, inefficiency and discrimination in distribution. GoI has also failed to respond to concerns about the rights of peasants and farmers, the issue of unprecedented numbers of farmers’ suicides and the endemic malnourishment that still persists in the country, as recently acknowledged by the Prime Minister himself.

Overall, WGHR regrets that GoI desisted from responding to most of the substantial comments, questions and recommendations by states. According to Miloon Kothari: “It remains to be seen whether GoI will take a constructive view and accept the many recommendations it will receive from the Human Rights Council on 30 May and engage in a genuine dialogue, including cooperation, with the UN between the second and third UPR. The opportunity also still exists, prior to the final adoption ofIndia’s report in September 2012, for GoI to begin a process of serious consultations with civil society and independent actors – including human rights institutions – at home. It is only when such steps, consistent with a democratic mode of governance, are taken that the UN will be convinced that GoI is serious about fostering an atmosphere that will contribute to an improvement in the adverse human rights situation on the ground.” 

For more information, contact:

 Miloon Kothari, Convenor, Working Group on Human Rights inIndiaand the UN (WGHR) phone (Geneva): +41 792020679; email: miloon.kothari@gmail.com

 Vrinda Grover, Lawyer – phone: +91 9810806181; email: vrindagrover@gmail.com

 Madhu Mehra, Director, Partners for Law in Development (PLD) phone: +91 9810737686; email: programmes@pldindia.org

[The Working Group on Human Rights in India and the UN – a national coalition of fourteen human rights organizations and independent experts – works towards the realisation of all civil, cultural, economic, political and social human rights in India, and towards holding the Indian government accountable to its national and international human rights obligations. For information on WGHR, please visit: http://www.wghr.org]

See the original statement here.

People fast for repeal of AFSPA at Silchar, Assam

November 6, 2011

FOR IMMEDIATE RELEASE

Press Statement, November 02, 2011

People fast for repeal of AFSPA at Silchar, Assam

Fasting Against AFSPA at Silchar on 5 Nov. 2011

Fasting Against AFSPA at Silchar on 5 Nov. 2011

Silchar, 6 November 2011: Hundreds of people gathered in front of the district headquarters at Silchar, Assam on 5 November, 2011 and demonstrated peacefully while observing symbolic fast for the day from 9am to 5pm in solidarity with the nationwide Save Democracy Repeal AFSPA campaign and to mark 11th year of epic fast by Irom Sharmila Chanu in demand of repeal of the draconian law called the Armed Forces (Special Power) Act, 1958. The event was organized by Barak Human Rights Protection Committee (BHRPC), Human Rights Organisation, Cachar, (HRO). Apart from the members of some other social organizations such as Kishan Bikash Samiti, Banskandi, Krishak Mukti Sangram Samiti, Assam Majuri Shramik Union, COPE and others many lawyers, journalists, teachers, artists and cultural activists also participated.

Many community leaders, social workers, journalists, teachers and lawyers addressed the gathering and explained what is AFPSA, how it is affected our lives and why it needs to be immediately repealed. Every one who talked expressed his/her profound respect to Sharmila, her determination and sacrifice and urged the people to rally behind her until the bad law goes. Some of the speakers narrated some cases of indiscriminate killing, barbaric torture, inhuman treatment of the civilians by the members of the armed forces ofIndiain Barak valley, other parts of North East India andJammu and Kashmir.

Sadique Mohammed Laskar, joint secretary, BHRPC, opened the talk by welcoming the hunger strikers. He informed the gathering that this movemenr has become a worldwide phenomenon now and we are a part tat larger agitation against state repression and corporate loots. Womens rights activists and poet Snigdha Nath recited a Bengali version of the poem titled Imprisoned in Democracy by Musab Iqbal. Reputed lawyer and activist Mr. Imad Uddin Bulbul talked at length about the violence in North East, its reasons and particularly it impact on the day to day lives of common people. He also condemned violence by non-state actors. BHRPC secretary general Neharul Ahmed Mazumder discussed how the AFSPA takes away fundamental rights to life, liberty and human dignity enshrined in the constitution. Waliullah Ahmed Laskar, a prominent human rights defender in North East India, talked about politics of the AFSPA and other draconian laws and said such laws and policies are based on racism and fascism. He also brought our the lack of legality in the law by showing procedural and substantial deficiencies in the AFSPA. M Shantikumar Shingh said that it is hopeful that the people of Barak valley joined the movement, it does not matter that they did it after 11 years. Thirthankar Chanda laws are actually used to repress the voices of activists who protest against corruption, exploitation and corporate loot of natural resources jeopardizing environment and livelihood of the masses. President of Cachar Human Rights Organisation Mr. Irabat Shingh showed how AFSPA is misused and abused by narrating many cases of human rights violations.

Others who addressed the gathering include reporter Dilip Shingh, convener of All Barak Students Association Baharul Islam Barbhuiya, publicity secretary of Assa Meira Paibi Organisation Meiragnloi Devi, secretary of the Silchar Press Club Mr. Shankar Dey, Monir Uddin Laskar, Herajit Shingh, Reba Nath, Bikash Das Purakayastha, Arup Baishya, Dipankar Chanda, Pijush Das, Dayanand Shingh, Lili Devi and others. Everybody urged they central government to repeal the AFSPA and other draconian laws and seek the political solutions for the political problems. They also unanimously wanted to make the movement stronger and more widespread. After the fast was broken BHRPC submitted a memorandum addressed to the prime minister of Indiaurging him repeal the AFSPA.

For more information contact:

Waliullah Ahmed Laskar

Barak Human Rights Protection Committee (BHRPC)

Mobile: 09401942234

Email: wali.laskar@gmail.com

Rongpur Part IV, Silchar-9

Assam, India.

Fasting Against AFSPA at Silchar on 5 Nov. 2011

Fasting Against AFSPA at Silchar on 5 Nov. 2011

Fasting Against AFSPA at Silchar on 5 Nov. 2011

Fasting Against AFSPA at Silchar on 5 Nov. 2011

Fasting Against AFSPA at Silchar on 5 Nov. 2011

Fasting Against AFSPA at Silchar on 5 Nov. 2011

BHRPC to observe fasting and demonstration for repeal of AFSPA

November 2, 2011

FOR IMMEDIATE RELEASE

Press Statement, October 02, 2011

 

BHRPC to observe fasting and demonstration for repeal of AFSPA

Barak Human Rights Protection Committee (BHRPC), a voluntary organization for human rights working in Assam, in co-operation with Cachar Human Rights Organisation (CHRO) is organizing a one day symbolic fast and demonstration from 9am to 5pm on 5 November, 2011 in front of the district head quarters at Silchar (Assam, India) in demand of repeal of the draconian law called the Armed Forces (Special Power) Act, 1958 (AFSPA) in solidarity with the nationwide campaign of Save Democracy Repeal AFSPA to mark the 11th year of epic fast of iconic human rights defender and poet-journalist Irom Chanu Sharmila of Manipur.

The AFSPA is a piece of colonial legislation which gives the armed forces of India unfettered power: (i) to use lethal force even to the causing of death on civilians on mere suspicion that they may cause breach of any law or order, (ii) to search any dwelling places by breaking them on mere suspicion without warrant and (ii) to arrest people without warrant and to keep them in custody for unspecified time and the Act also bars the judiciary to question any acts of the armed forces operating under the Act in areas declared disturbed under the Act. The Act is in force in parts of North East includingAssam for more than five decades and a version of the Act inJammu and Kashmir for more than two decades. The Act violates the spirit and values of the Constitution of India, universally accepted human rights standards and democratic norms. Government appointed committees including the one chaired by Justice Jeevan Reddy also found the Act undesirable and unambiguously recommended for its repeal.

Actions taken under the Act caused hundreds of extra-judicial killings, rapes, torture, enforced disappearances putting the people living in the AFSPA affected area under terror, affecting normal governance and defeating democracy. Civil society groups across North East and from the other parts of the country advocating and agitating for repeal of the Act. The most emblematic protest has been carrying out by Irom Sharmila who has been on hunger strike since 5 November, 2000 in demand of the repeal of the Act. She is continuously arrested and re-arrested on charges attempt to commit suicide and forcibly fed through a nasal tube by the prison wardens.

BHRPC urges the people of the region to participate in the symbolic fast and demonstration of 5 November, 2011 in solidarity with Irom Sharmila and Save Democracy Repeal AFSPA campaign in demand of repeal of the Act and investigation of human rights violation allegations.

For more information contact:

Waliullah Ahmed Laskar

M: 09401942234,

Email: wali.laskar@gmail.com

Barak Human Rights Protection Committee (BHRPC)

Rongpur Part IV, Silchar-9,

Assam, India

BHRPC condemns attack on anti-AFSPA campaigners

October 20, 2011

FOR IMMEDIATE RELEASE

BHRPC Statement, October 20, 2011

 

BHRPC condemns attack on anti-AFSPA campaigners

Barak Human Rights Protection Committee (BHRPC) is shocked at the reports of attack on the campaigners against the Armed Forces (Special Power) Act, 1958 (AFSPA) and strongly condemns the incident and the anti-democratic fascist mindset displayed by the attackers on the peaceful protestors.

It is reported that when a large number of students mainly from the North East Indian states joined the Save Sharmila Solidarity Group at the north campus of Delhi University as a part of the Srinagar-to-Imphal Yatra demanding repeal of the AFSPA miscreants created nuisance at the rally pelting stones and tomatoes. Several students sustained injuries due to stone pelting.

It is also alleged that in spite of information provided, theDelhipolice arrived late in the scene and did not make any arrest of the alleged attackers but instead denied permission to hold the peaceful rally any further.

It is to be mentioned that the 4,500 km longSrinagar-to-ImphalYatra is being carried out to make common people aware of the draconian, anti-democratic and anti-human rights provisions of AFSPA applicable in the North Eastern states andJammu and Kashmir. The rally is being joined by several social activists of national fame such as Medha Patkar, Magsaysay Award winner Sandeep Pandey, National Alliance of People’s Movement leader Faisal Khan, Irom Sharmila’s brother Irom Singhajit and Parveena Ahangar of the Association of Disappeared Persons.

BHRPC believes that the attack is a blatant violation of, and an assault on, the basic fundamental rights of freedom of expression and peaceful assembly committed with tacit support of the police. The incident displays the discriminatory attitude, anti-democratic and fascist mindset of the authorities and a section of the people towards the North Eastern people. The AFSPA is the legislative embodiment of that attitude and mindset. Both the attitude and mindset, and the statute is dangerous for democracy, rule of law and human rights inIndia. They do not have a legitimate place in a democraticIndia.

BHRPC urges the authorities to take appropriate actions under the law against the alleged attackers and make arrangements for the protection of the human rights defenders campaigning against the AFSPA.

Waliullah Ahmed Laskar

Barak Human Rights Protection Committee (BHRPC)

Guwahati,Assam

20 October 2011