usi – icrc seminar wednesday, 11 august, 2010 session-ii
TRANSCRIPT
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