The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns completed his mission to India on 30 March 2012 and issued an official press release as a current method of work practice of his mandate set by his predecessors. Acknowledging the huge diversity of India in terms of religion, languages and culture, and India’s federal structure, he said that “[t]he challenge to protect, promote and respect the right to life (in India) is undeniably a real one. It is of concern however that despite constitutional guarantees and a robust human rights jurisprudence, extrajudicial killings is a matter of serious concern in India.” Emphasising that the “solutions to these issues largely lies within the system itself”, he elaborated on his concerns, shared his conclusions and presented his provisional recommendations.
His concerns regarding unlawful killings, both in terms of prevention and accountability, focused on the use of force of State actors and non-state actors, systemic challenges, and the role of human rights institutions.
The use of excessive force by the police attracted special attention. The statement mentioned that salutary guidelines laid down by the Supreme Court “are not sufficiently complied with.” Statutory immunity that restrict accountability aggravate the problems and the practice of “fake encounters” has developed in parts of the country, the statement added. Reported deaths in police and judicial custody in India were one of the major concerns, often in the context of torture. He expressed his hopes that the proposed legislation underway to ratify the UN Convention against Torture (CAT) would be compliant with the UN treaty’s provisions.
Prof Heyns’ statement dwelt on the issue of the Armed Forces deployed in the so-called ‘disturbed areas’ in the North East and in Jammu and Kashmir. He gave elaborate attention to the question of the long-term application of the Armed Forces (Special Powers) Act (AFSPA) in these parts of the country. He emphatically and unequivocally stated that “such a law as AFSPA has no role to play in a democracy and should be scrapped.” Stating that the Act clearly violated international law, he said “the widespread deployment of the military as a primary response to conflict with a concomitant permissive approach…of the use of lethal force…is difficult to reconcile in the long run with India’s insistence that it is not engaged in armed conflict.”
A number of systemic challenges were mentioned in his statement. The issues of delayed justice, awarding alleged perpetrators,compensation instead of prosecution, burdening the victim to initiate civil, criminal or writ proceedings, emphasis on juridical form over real practice, statutory immunity, lack of protection of witnesses, the weak role of human rights institutions, etc. were some key aspects of his concerns. The question of impunity encouraged by legal and juridical shortcomings was also an identified concern and challenge.
Significantly, Prof Heyns proposed a national Commission of Inquiry, that is credible and inspires the confidence of the people, to inquire into extrajudicial executions in India to be appointed by the government which also serves a transitional justice role. The Commission has to be required to complete its work within a reasonably short period. Such a Commission, he suggested, should “inquire into past violations, propose where relevant measures to deal with those, and work out a plan of action for the future to eradicate practices of extrajudicial executions. The Commission must submit recommendations on legal reform, and the reform of state structures, security apparatus and processes that encourage impunity.”
His provisional recommendations covered a range of issues. including the repeal of AFSPA and the Jammu and Kashmir Armed Forces Special Powers Act of 1990 in order to send a powerful signal about the State’s commitment to a new dispensation.
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Press Statement of the Special Rapporteur on EJE at New Delhi_30 March 2012