Published on February 6, 2014
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
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