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

APPROACHAPPROACH

1. What are Human Rights2. Statutory framework3. AFSPA4. HR and the Armed Forces• Dissemination• Compliance• Enforcement Mechanism• NHRC and HR Cell5. Case Law6. Recommendations

HUMAN RIGHTS HUMAN RIGHTS DEFINITIONDEFINITION

Certain basic, inalienable and fundamental

rights as well as freedoms that every

citizen enjoys irrespective of the country

he belongs to.

HUMAN RIGHTSHUMAN 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 WARRIORCODE 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 STATUTESRELEVANT 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 RIGHTSFUNDAMENTAL 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 THE PROTECTION OF HUMAN RIGHTS ACT 19931993

Preamble

Enacted for better protection of Human

Rights and for matter connected therewith.

MAIN FEATURESMAIN FEATURES

1. Setting up of NHRC

2. State Human Rights Commissions

3. Human Rights Courts

FUNCTIONSFUNCTIONS

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 19SECTION 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) ARMED FORCES (SPECIAL POWERS) ACT, 1958ACT, 1958

Preamble

To confer certain special powers upon

members of the Armed Forces in

disturbed areas.

THE ARMED FORCES (SPECIAL THE ARMED FORCES (SPECIAL POWERS) ACT, 1958POWERS) ACT, 1958

1. Notification2. 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

PROTECTIONPROTECTION

Prior sanction of the Central Government

before instituting any prosecution, suit or

other proceedings.

HUMAN RIGHTSHUMAN RIGHTS

Army HQ ADG DV (Maj. Gen.)

DDG DV (Brig.)

Col HR (Col.)

Dy. Director Lt. Col./Maj.)

HQ Comds

Force HQ

CODE OF CONDUCTCODE 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 CELLROLE 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 LAWCASE LAW

Naga People’s Movement of Human Rights

V

Union of India; AIR 1998 SC 431

SCRUTINY BY THE SUPREME COURTSCRUTINY 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 CHECKS/SAFEGUARDS INTRODUCED BY THE SUPREME COURTBY THE SUPREME COURT

1. Periodic review of declaration before expiry of six months.

2. Desirable for Central Government to consult State Government.

3. Armed Forces not to supplant or act as substitute for the civil power. State administration will continue to function.

4. Armed Forces personnel to use minimum force.5. Hand over arrested person within 24 hours to nearest

Police Station.6. 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 POWERSIMPLIED 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 COMMANDERCS RAO V THE SUPREME COMMANDER

Fundamental Rights cannot be given

away to the control of military

authorities or tribunals.

CRITICISM OF AFSPACRITICISM OF AFSPA

1. Abuse/misuse.

2. Harassment of civil.

3. Fake encounters.

4. 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

RECOMMENDATIONSRECOMMENDATIONS

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