Transcript 7) human rights and the indian armed force

USI – ICRC SEMINAR
Wednesday, 11 August, 2010
Session-II
Human Rights
And
The Indian Armed Forces
If there were no bad people, there would be
no good lawyers.
Charles Dickens
APPROACH
1.
2.
3.
4.
•
•
•
•
5.
6.
What are Human Rights
Statutory framework
AFSPA
HR and the Armed Forces
Dissemination
Compliance
Enforcement Mechanism
NHRC and HR Cell
Case Law
Recommendations
HUMAN RIGHTS
DEFINITION
Certain basic, inalienable and fundamental
rights as well as freedoms that every
citizen enjoys irrespective of the country
he belongs to.
HUMAN RIGHTS
These are universal and belong to every
one, rich or poor, male or female. Such
rights may be violated but they can never be
taken away.
CODE OF THE WARRIOR
I am a warrior. Defending my nation is my dharma. I will
train my mind, body and spirit to fight. Excel in all devices
and weapons of war, present and future. Always protect the
weak. Be truthful and forthright. Be humane, cultured and
compassionate.
Fight and embrace the consequences willingly.
God, give me strength that I ask nothing of you.
The Bhagwad Gita
The term Human Rights was first
introduced in the American Declaration
of Independence in 1776.
RELEVANT STATUTES
• Constitution of India, 1950
• Army Act, 1950
• The Armed Forces (Special Powers) Act,
1958
• Geneva Conventions Act, 1960
• The Protection of Human Rights Act, 1993
• The Unlawful Activities (Prevention) Act,
1967 (Amendment Act 2008)
Constitution of India
Human Rights go by a different name.
Incorporated as Fundamental Rights.
FUNDAMENTAL RIGHTS
1. Rights to equality (Art 14)
2. Rights to freedom (Art 19)
3. Rights to freedom of religion (Arts 25
and 28)
4. Rights against exploitation (Arts 23 &
24)
5. Cultural and education remedies (Arts
29& 30)
THE PROTECTION OF HUMAN RIGHTS ACT
1993
Preamble
Enacted for better protection of Human
Rights and for matter connected therewith.
MAIN FEATURES
1. Setting up of NHRC
2. State Human Rights Commissions
3. Human Rights Courts
FUNCTIONS
1. Inquire a violation of HR on a petition or suo
motu.
2. Intervene in any such proceedings.
3. Visit any jail or other institution and review
safeguards provided under the Constitution.
4. Review facts including acts of terrorism.
5. Study treaties and make recommendations.
SECTION 19
On receipt of complaints of violation of
Human Rights by a member of Armed
forces, the commission shall either on its
motion or on receipt of petition, seek a
report from the Central Government.
After receipt of the report, it may
a) Decide not to proceed with the
complaint.
b) Or it may make its recommendation
to the Government.
The Central Government shall inform
the Commission of the action taken on
the recommendations.
ARMED FORCES (SPECIAL POWERS)
ACT, 1958
Preamble
To confer certain special powers upon
members of the Armed Forces in
disturbed areas.
THE ARMED FORCES (SPECIAL
POWERS) ACT, 1958
1. Notification
2. Special Powers
a) Fire upon or otherwise use force.
b) Destroy arms dump, fortified position
or shelter etc.
c) Arrest without warrant.
d) Enter and search without warrant.
3. Protection
PROTECTION
Prior sanction of the Central Government
before instituting any prosecution, suit or
other proceedings.
HUMAN RIGHTS
Army HQ
HQ Comds
Force HQ
ADG DV (Maj. Gen.)
DDG DV (Brig.)
Col HR (Col.)
Dy. Director Lt. Col./Maj.)
CODE OF CONDUCT
1. Avoidance of HR violations under all
circumstances.
2. Be compassionate.
3. People friendly operations. Ensure least
possible inconvenience and harassment.
4. Use of minimum force. Avoid collateral
damage.
5. Co-opt Police representative/women Police.
6. Be truthful and honest (WHAM).
7. Sustain physical and moral strength.
ROLE OF HR CELL
1. To act as nodal agency for receipt of
allegations and complaints.
2. Monitor HR issues.
3. Ensure prompt probe in case of HR
violations and suitable punishment.
CASE LAW
Naga People’s Movement of Human Rights
V
Union of India; AIR 1998 SC 431
SCRUTINY BY THE SUPREME COURT
1. Act not a colourable legislation.
2. Not a fraud on the Constitution.
3. Does not amount to handing over the
maintenance of public order to the Armed
Forces directly.
4. Conferment of drastic powers under
Section 4 is not discriminatory or
arbitrary.
CHECKS/SAFEGUARDS INTRODUCED
BY THE SUPREME COURT
1.
2.
3.
4.
5.
6.
Periodic review of declaration before expiry of six
months.
Desirable for Central Government to consult State
Government.
Armed Forces not to supplant or act as substitute for
the civil power. State administration will continue to
function.
Armed Forces personnel to use minimum force.
Hand over arrested person within 24 hours to nearest
Police Station.
Procedural safeguards under Cr PC for search and
seizure to be followed.
7. Disregard to Do’s and Don’ts to invite
action under the Army Act.
8. Co-opt women police.
9. Award of compensation.
10. Speaking order under section 6.
IMPLIED POWERS
1. To interrogate.
2. To retain custody of seized
weapons.
The acceptance of indiscipline is even
more disastrous than indiscipline itself.
Nani Palkhivala
CS RAO V THE SUPREME COMMANDER
Fundamental Rights cannot be given
away to the control of military
authorities or tribunals.
CRITICISM OF AFSPA
1.
2.
3.
4.
Abuse/misuse.
Harassment of civil.
Fake encounters.
Denial of sanction by Central
Government.
It must be remembered that merely because
power may sometimes be abused, it is no
ground for denying the existence of power.
The wisdom of man has not yet been able to
conceive of a government with power
sufficient to answer all its legitimate needs
and at the same time incapable of mischief.
State of Rajasthan V UOI; 1978(1) SLR 1
RECOMMENDATIONS
1. Introduce specific courses for all ranks.
2. Prepare separate manual on HR and IHL.
3. Further sensitize troops by war games, TWETs
and workshops.
4. Obligatory to co-opt a civil official in every COI.
5. Investigations to be accessible to civil
witnesses.
6. Include a woman officer in all COI involving
allegations of sexual misdemeanor.
Further Recommendations
1. Compilation of case studies.
2. Amend military law to introduce an
omnibus section to cater for HR
violations.
3. Utilise JAG Department Officers to the
process of recording of confessional
statements, seizure memos and FIR
etc.
No system of justice can rise above the
ethics of those who administer it.
Wickersham Commission
THANKS