Human rights and indian armed forces in low intensity

CHAPTER I

INTRODUCTION

“A bullet fired by the security forces becomes a massacre by the security forces & every act of a terrorist or insurgent is attributed as a colossal failure of security”

1. The quote above describes the situation under which thousands of armed forces personnel, deployed to fight the anti national and anti social elements in low intensity conflict operations in the North Eastern region for over five decades and for two decades in Jammu & Kashmir.
2. One of the greatest threats to the future of Indian democracy is terrorism which has almost become a way of life in the North Eastern states. Pakistan has been waging a proxy war in Jammu & Kashmir since 1989. She has been infiltrating armed militants and promoting insurgency on a very large scale. Failure of the civil administration to control the situation has led to the deployment of the armed forces in low intensity conflict operations. Though, the security forces have been able to bring the situation under control, at the same time has also brought up the issues of violation of human rights from time to time.
3. The situation at present is that, while there is an increasing and widespread demand for human rights observance of by the security forces operating in low intensity conflict operations environment under Armed Forces Special Powers Act, gross violations of the same by the insurgent, militant and separatist organisations continue unabated.
4. In the recent past the demand for repealing of The Armed Forces Special Powers Act has considerably increased. This act is blamed to be a draconian law which violates the basic rights of human beings guaranteed to them by the various provisions of the constitution and international laws and conventions. Armed Forces Special Powers Act was enacted by the Parliament for the first time in 1958, to deal with certain serious threats to the integrity of the nation from some separatist organisations in some of the North Eastern states.   Under similar conditions this act was promulgated in Punjab in 1980s and in the state of Jammu & Kashmir in 1990.
5. Some people and organisations believe that Armed Forces Special Powers Act is the single most factor for the human rights violations.  Certain international organisations have also voiced their opinion in favour of the repeal of this act.  However, it needs an in depth study to ascertain whether Armed Forces Special Powers Act is only causing human rights violations and it’s repeal will help in reducing the same.

METHODOLOGY

Statement of the Problem

6. Armed Forces Special Powers Act is perceived to be one of the major reasons for human rights violations in low intensity conflict environment. Repeal of Armed Forces Special Powers Act will help in reduction of human rights violations in these areas.

Justification for the Study

7. Internal security environment has been deteriorated in various parts of the country since long due to ongoing low intensity conflict operations in their various forms.  Insurgency, militancy and terrorism are the result of some of the peculiar socio political situations, some of which are also engineered and abetted by our adversaries.  These problems have led to increased involvement of the armed forces to assist the civil administration in maintaining the law and order situation in various parts of the country.  Emergence of media especially electronic media and some human rights organisations have resulted into increased awareness of the human rights in the societies.
8. Human rights reports from time to time have indicated that a number of human rights abuses have taken place despite extensive constitutional and statutory safeguards. Violation of human rights by security forces has also been reported by many organisations. Since a very large number of armed forces are deployed in low intensity conflict operations in various parts of the country, the study of the subject is of great relevance. In such a scenario, it is imperative that all members of the armed forces be aware of the various aspects of human rights so that they are respected at all times and also to avoid allegations of violation of human rights while operating in low intensity conflict operations.

Scope

9. The scope of this paper is to study the concept and provision of human rights in International Declarations and Indian Constitution, legal aspects of employment of armed forces in low intensity conflict operations, Armed Forces Special Powers Act, Armed Forces Special Powers Act and human rights violations, recommendations on repeal/review of Armed Forces Special Powers Act and recommended measures to prevent human rights violations in low intensity conflict operations environment.

Methods of Data Collection

10. The library of the Defence Services Staff College, precies and handouts issued by the Defence Services Staff College, interaction with some prominent personalities, conduct of opinion poll at Defence Services Staff College and articles from the Internet has been the source of information and data used in this paper.   A bibliography of sources has been appended at the end of the dissertation as Appendix A.

Preview

11. It is proposed to study the subject by analysing and evaluating the following

aspects:-

1. Origin and concept of human rights.
2. Universal Declaration on Human Rights and provision of human rights in Indian Constitution.
3. Legal aspects of low intensity conflict operations and Armed Forces Special Powers Act.
4. Armed Forces Special Powers Act and human rights violations.
5. Recommendations on repealing of Armed Forces Special Powers Act.
6. Remedial measures to prevent human rights violations.
7. Conclusion.

CHAPTER II

ORIGIN AND CONCEPT OF HUMAN RIGHTS

1. References of the concept of basic human rights can be found in recorded history and ancient scriptures. In India the concept of human rights can be traced down to the Vedic times. There are many references in Vedas which throw light on the existence of human rights . The Rig Veda refers to three civil rights, the liberty of body (Tana), dwelling house (Skridhi) and life (Jibhasi). The importance of the freedom of the individual in a state and rules of war, one form of human rights has been described in Mahabharata. Artha Shastra elaborates on civil and legal rights first formulated by Manu which also include economic rights. In India, the modern version of human rights jurisprudence has taken birth at the time of British rule. The origin of this ideal lies in the struggle for freedom against the British rulers.
2. Modern historians credit the origin of the concept to Magna Carta 1521 AD. On close examination it would be seen that Magna Carta was a petition urging the King to concede certain rights to particular section of the people. It’s contents had neither the universality nor  direct relevance to common man’s basic freedom.
3. The term “Human Rights” was introduced in the United States Declaration of Independence in 1776. The French Resolution in 1789 ushered in the Declaration of Rights of Man and Citizen.  Much later in 1929, the Institute of International Law, New York, USA, prepared a Declaration of Human Rights and Duties.  In 1945, the Inter American Conference passed a resolution seeking the establishment of an international forum for the furtherance of human rights of mankind.
4. The World War II drew the required attention towards human rights.  The atrocities committed on ethnic grounds by the Axis Powers shocked the conscience of the international community.  The United Nations finally proclaimed the Universal Declaration of Human Rights in 1948.
5. Modern human rights can be categorised into three generations of rights. The first generation rights are concerned with the civil and political rights of the individual or the liberty oriented rights. The second-generation rights are those which are security oriented and provide social, economic and cultural securities. Third generation of human rights include the environmental and developmental rights. They are relatively of recent origin. They have evolved in response to various new concerns over which international consensus has emerged in recent years.
6. The concept of human rights is based on equal and inalienable rights of all human beings’ freedom, justice and peace in the world.  These are sometimes also called fundamental or basic rights.  These are often set out in the constitution of the nation.  All member countries of the United Nations have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.
7. The concept of human rights would include the following:-
1. Equality and justice for all, elimination of various distinctions between one human being and another anywhere and on any ground whatsoever.
2. No one to be held without any charge or trial.
3. Right to be produced before a magistrate with 24 hours of arrest.
4. Rights to fair and prompt trial.
5. Freedom from torture or ill treatment by any agency
6. Protection from sexual violations.
7. Rights to life and to be treated humanely, no killings, particularly of innocent person and not even inhuman behaviour.
8. Freedom from arbitrary and unlawful coercion.
9. Rights against any or all other excesses.

CHAPTER III

UNIVERSAL  DECLARATION ON HUMAN RIGHTS AND PROVISION OF  HUMAN RIGHTS IN INDIAN CONSTITUTION

1. The United States defined human rights in a policy document in 1978, which says, “Freedom from arbitrary arrest and imprisonment, torture, unfair trial, cruel and unusual punishment and invasion of privacy, rights to food, shelter, health care, education, freedom of thought, speech, assembly, religion, press, movement and participation in Government”.
2. The United Nations Organisation in keeping with its charter to promote respect for fundamental freedom and human rights for all without any distinction, came out with an International Bill of Human Rights consisting of the following:-
   1. Universal Declaration of Human Rights, 1948.
   2. The International Covenant on Civil and Political Rights, 1966.
   3. The International Covenant of Economic Social and Cultural Rights, 1966.
   4. The Optional Protocol (1966) providing for the right of the individual to petition international agencies.
3. The principle on which the above are based are:-
4. 1. All human beings, without distinction have been brought within the scope of human rights instruments.
   2. Equality of application without distinction of race, sex, language or religion.
   3. Emphasis on international cooperation for implementation.
5. Provision of Human Rights in Indian Constitution. India is a signatory to the various conventions proclaimed by the United Nations Organisation. The Constitution of India guarantees to every citizen the basic human rights and fundamental freedom and gives due prominence in the form of fundamental rights enumerated in part III of the constitution  and are also embodied as Directive Principles of State Policy  .  The important aspects are:-
6. 1. Right to equality.
   2. )Right to freedom.
   3. Right against exploitation.
   4. )Right to freedom of religion.
   5. Cultural and educational rights.
   6. Right to constitutional remedies.

CHAPTER IV

LEGAL ASPECTS OF LOW INTENSITY CONFLICT OPERATIONS AND  ARMED FORCES SPECIAL POWERS ACT

1. General.  The armed forces have been engaged in counter insurgency operations especially in North Eastern states of India since 1958 and in Jammu & Kashmir since early nineties.  It is the constitutional responsibility of the army to ensure the integrity of the country both from external aggression as well as internal disturbances when the internal situation becomes serious and gets beyond the capabilities of the civil administration.
2. Legal Provisions. Several legal provisions exist to provide legal powers and protection to the armed forces to execute internal security duties and aid to civil authorities[x]. These provisions are enumerated below:-
1. Armed Forces (Special Powers) Ordinance, 1947.
2. Armed Forces (Special Powers) Act, 1958.

Provisions of Criminal Procedure Code (CrPC), 1973, (Section 45)

3. Constitution of India, Article 246 vis – a – vis the Commission of Inquiry Act, 1952.
4. The Unlawful Activities (Prevention) Act 1967.
5. Indian Arms Act 1959.
6. Indian Penal Code (IPC).
7. The Nagaland Security Regulation, 1962.

Armed Forces Special Powers Act

3. Background. To meet the situation arising in certain parts of India on account of the partition of the country in 1947, the Government of India issued four ordinances viz., Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947 (Act 11 of 1947), Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947 (Act 14 of 1947), East Punjab and Delhi Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947 (Act 17 of 1947) and United Provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947 (Act 22 of 1947). These ordinances were replaced by the Armed Forces (Special Powers) Act, 1948 being Act 3 of 1948. It was repealed by Act 36 of 1957.
4.   The present act was enacted by the Parliament in 1958 and it was known initially as Armed Forces (Assam and Manipur) Special Powers Act, 1958. The act was preceded by an ordinance called Armed Forces (Assam and Manipur) Special Powers Ordinance, 1958 promulgated by the President of India on 22 May 1958. The act applied to the entire state of Assam and the union territory of Manipur. After the new states of Arunachal Pradesh, Meghalaya, Mizoram, and Nagaland came into being, the act was appropriately adapted to apply to these states in 1972. As originally enacted, the power to declare an area to be a disturbed area was conferred only upon the state governments. By Act 7 of 1972, however, such a power was conferred concurrently upon the Central Government. This act was enacted in the state of Punjab in 1980s and in Jammu & Kashmir in 1990.
5.   The Preamble to the act, as amended, reads as “Act to enable special powers to be conferred upon members of the armed forces in disturbed areas in the states of xxxxx (as applicable)”.
6. The Act and its Provisions.   The provisions of the act are similar to those of the first passed in 1958.  The basic features of the act are as follows:-

1. Section 1. This section states the name of the act and the areas to which it extends.
2. Section 2. This section sets out the definition of the act.

1. Sub section (a).  the armed forces were defined as “Military forces and air forces operating as land forces, and includes any other armed forces of the union so operating”. 
2. Sub section (b).  It defines a disturbed area as “An area which is for the time being declared by notification under section 3 to be a disturbed area”.
3. Sub section (c). It states that all other words and expressions used but not defined in the act will have the meanings assigned to them in the Army Act of 1950 or Air Force Act 1950.

1. Section 3. It grants the power to declare an area disturbed to the Central Government and the governors of the state.   Governor of that state or the administrator of that union territory or the Central Government, as the case may be, may, by notification in the official gazette, declare the whole or such part of such state or union territory to be a disturbed area.
2. Section 4.  It enumerates the special powers of the armed forces, which are deployed in a state or a part of the state to act in aid of civil power. The section reads that any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,

1. Sub section (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 prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances.
2. Sub section (b). If he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as training camp for armed volunteers or utilised as a hideout by armed gangs or absconders wanted for any offence.
3. Sub section (c). Arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest.
4. Sub section (d). Enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.

1.   Section 5.   This section states that that any person arrested and taken into custody under this act shall be handed over to the officer-in-charge of the nearest police station with least possible delay, together with a report of the circumstances occasioning the arrest.
2. Section 6.  This section confers a protection upon the persons acting under the act. No suit, prosecution or other legal proceeding can be instituted against such person in respect of anything done or purported to be done in exercise of the powers conferred by this act, except with the previous sanction of the Central Government.

1. g.Section 7.Repeal and saving.

   7.Do’s and Don’ts for Armed Forces Special Power Act.   Army Headquarters has issued certain Do’s and Don’ts to be followed by the members of the armed forces while operating under Armed Forces Special Powers Act. As per direction of the Supreme Court,  the forces operating under this act shall observe

   and abide by the following directives in the course of operations under the act:-

Do’s

8.Actions before Operations.

1.      Act only in areas declared “Disturbed area” under section 3 of the act.
2.      Power to open to fire using force or arrest is to be exercised under this act only by an officer /junior commissioned officer/ and non commissioned officer

   Before lunching any raid/search, definite information about the activist to be obtained from the local civil authorities.

3.      As far as possible co-opt representative of local civil administration during the raid.

9.Actions during Operations.

1.     In case of necessity of opening fire and using any force against the suspect or any person acting in contravention to law and order, ascertain first that it is essential for maintenance of public order. Open fire only after due warning.
2.    Arrest only those who have committed cognisable offence or who are about to commit cognisable offence or against whom a reasonable ground exists to prove that they have committed or are about to commit cognisable offence.

Ensure that troops under command do not harass innocent people, destroy property of the public or unnecessarily enter into the house/dwelling of people not connected with any unlawful activities.

3. Ensure that women are not searched/arrested without the presence of female police.  Women should be search by female police only.

10.Actions after Operations.

1. After arrest prepare a list of the persons so arrested.
2. Handover the arrested persons to the nearest police station with least possible delay.

   While handing over to the police a report should accompany with detailed circumstances occasioning the arrest.

3. Every delay in handing over the suspects to the police must be justified and should be reasonable depending upon the place, time of arrest and the terrain in which such person has been arrested. Least possible delay may be 2-3 hours extendable to 24 hours or so depending upon a particular case.
4. After raid/search operations make out a list of all arms, ammunition or other incriminating material/ documents taken into possession.
5. All such arms, ammunition, store etc should be handed over to the police station along with the seizure memorandum.
6. Obtain receipt of persons and arms/ ammunition, stores etc so handed over to the police.
7. Make record of the area where operation is launched, having the date, time and the persons participating in such raids.
8. Make a record of the commander and other officer/ junior commissioned officer/ and non commissioned officer forming part of such force.
9. Ensure medical relief to any person injured during the encounter. If any person dies in the encounter his dead body be handed over immediately to the police along with the details leading to such death.

11.       Dealing with Civil Court.

1.     Direction of the high court/Supreme Court to be promptly attended to.
2.    Whenever summoned by the court, decorum of the court must be maintained and proper respect paid.

Answer questions of the court politely and with dignity.

3. Maintain detailed record of the entire operation correctly and explicitly.

Don’ts

12. Do not keep a person under custody for any period longer than the bare necessity for handing over to the nearest police station.
13. Do not use any force after having arrested a person except when he is trying to escape.
14.   Do not use third degree method to extract information or to extract confession or other involvement in unlawful activities.
15. After arrest of a person by the member of the armed forces, the member of the armed forces shall not interrogate him.
16. Do not release the person directly after apprehending on your own. If any person is to be released, he must be released through civil authorities.
17.   Do not tamper with official records.
18. The armed forces shall not take back a person after he is handed over to the civil police.

CHAPTER V

ARMED FORCES SPECIAL POWERS ACT AND HUMAN RIGHTS VIOLATION

Gen

• Many human rights organisations including United Nations Human Rights Organisation are demanding repeal of Armed Forces Special Powers Act very strongly. They allege this act to be draconian and responsible for major portion of the human rights violations. As per these organisations unprecedented powers have been given to the armed forces under this act, which contravene many of the constitutional provisions and international law standards. They blame that the act is illegal in many respects.

• Argument Against  Legality of Armed Forces Special Powers Act

  2. Various human rights organisations have pointed out many shortcomings of the Armed Forces Special Powers Act and blame it to be illegal. Some of the important aspects are enumerated in succeeding paragraphs. Indian Laws. Several cases challenging the constitutionality of Armed Forces Special Powers Act are pending before the Supreme Court. The following provisions of the Indian laws are alleged to be contravened by this act:- Violation of Right to Life.   Article 21 of the Indian Constitution guarantees the right to life to all citizens of the country. This right is violated by section 4 of this act.
     1. Violation of Right of Equality.Article 14 of the Indian Constitution guarantees equality before law. People residing in disturbed areas are denied this right due to provision of section 6 of the act which prevents citizen from filing a suit against the member of armed forces without the sanction of the Central Government.

        Violation of Protection Against Arrest and Detention. Under section 22 of the Constitution, any person arrested should be informed of the causes for the arrest and also he/she should be produced before a magistrate within 24 hours of arrest. This act violates both these provisions as the armed forces detain people for days and months at times.

     2. Preventive Detention Law. If the detention of arrested persons beyond 24 hours is defended on grounds of Preventive Detention Law, it still violates the provision of the law. As per provision of this law any person arrested without a warrant cannot be held for more than three months. Any detention longer than three months has to be reviewed by an advisory board. No such provision has been incorporated in Armed Forces Special Powers Act.
     3. The Indian Criminal Procedure Code (CrPC).
     1. The Criminal Procedure Code describes the procedures that the police is to follow for arrests, searches and seizures. Armed forces are not trained on these procedures and hence do not follow them. Criminal Procedure Code also advocates use of minimum force to disperse any assembly. No such provisions exist in Armed Forces Special Powers Act.
     2. An executive magistrate or a police officer not below the rank of a sub inspector is is authorised to disperse any unlawful assembly. In Armed Forces Special Powers Act every member of the armed forces less a sepoy has been authorised to do the same job.
     3. Criminal Procedure Code does not state use of force to disperse an assembly to the extent of causing death unless they are accused of an offence punishable by death. The same provision does not apply to Armed Forces Special Powers Act.
  3. Lack of Remedy to the Victim. Section 6 of Armed Forces Special Powers Act violates the provision of section 32(1) of the constitution that state the right to move to the Supreme Court in case any violation of his basic rights guaranteed by the constitution.
  1. State of Emergency. Armed Forces Special Powers Act grants the state of emergency powers to the armed forces without declaring a state of emergency as prescribed in the constitution.
  2. International Laws. Human rights organisations like United Nations Human Rights Commission claim that Armed Forces Special Powers Act violates the various provisions of United Nations Universal Declaration on Human Rights and many other International Laws. They include violation of the rights of free and equal dignity, non discrimination, life, security, no torture, equality before law, no arbitrary arrests etc. Some of the important aspects of International Laws are given in the succeeding paragraphs:-
  4. International Covenant on Civil and Political Rights (ICCPR). As per provisions of International Covenant on Civil and Political Rights some of the rights of the citizens e.g. right to life, prohibition of torture etc remain non derogable  even in case of emergencies. Armed Forces Special Powers Act violates both derogable and non derogable rights. International Covenant on Civil and Political Rights also guarantees that any person who is arrested has the right to know the reason for his arrest. This provision is also violated by the Armed Forces Special Powers Act as no armed forces authorities are obliged to inform the person the reasons for his/her arrest. International Customary Law. The Armed Forces Special Powers Act violates the United Nations Code of Conduct for Law Enforcing Officials in terms of use of force including use of fire arms in addition to the various other provisions which are repetitive of similar provisions in other international laws.

  Legal Analysis of Armed Forces Special Power Act 

  5. In depth analysis of Armed Forces Special Powers Act brings out that the arguments of various human rights organisations on the act being illegal are biased and are misinterpreted. Analysis of the act brings out the following facts:- 
  1. Legality of the Act.     Armed Forces Special Powers Act was enacted by the Parliament in 1958 as per the procedures and powers invested on it by the Indian Constitution. Hence this act is absolutely legal. The legality of this act has also been upheld by the Supreme Court in it’s verdict in the case of Naga Peoples Movement of Human Rights versus Union of India, challenging the legality of the act on 27 November 1997.
  2. Misunderstanding of Armed Forces Special Powers Act. A large portion of population does not have a clear understanding of the act. All actions of human rights violation including those by police organisations, assam rifles and other paramilitary forces are also thought to have occurred due to this act.

     Interpretation of Special Power.The term “Special Power” in the name of this act is often misunderstood and misinterpreted. There is no special power vested to the armed forces through this act. All provisions of section 4 of this act are vested to the police authorities even in peace time. Police can also arrest a person without a warrant when the person is accused of committing a cognisable offence. History has numerous accounts of k