PRESENTATION AT 11 TH HRSS 24 DECEMBER 2010

PRESENTATION AT 11 TH HRSS 24 DECEMBER, 2010

RESOURCE PERSON MAJ. GEN. NILENDRA KUMAR, FORMER JUDGE ADVOCATE GENERAL (ARMY) AND DIRECTOR, AMITY LAW SCHOOL, NOIDA, INDIA

INDIAN JUDICIARY ON HUMAN RIGHTS AND 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 Case Law Conclusion

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.

CONSTITUTION OF INDIA Human Rights go by a different name. Incorporated as Fundamental Rights.

CONSTITUTIONAL PROVISIONS 1. Right to Equality Article 14 -Equality before Law. Article 15 -Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 16 -Equality of opportunity in matters of public employment. Article 17 -Abolition of un-touchability. Article 18 - Abolition of titles.

2. Right to Freedom Article 19 Protection of certain rights regarding freedom of speech etc. Article 20 Protection in respect of conviction for offences. Article 21 Protection of life and personal liberty. Article 22 - Protection against detention in certain cases.

ARTICLE 21 Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.

3. Right against Exploitation Article 23 Prohibition of traffic of human beings and forced labour. Article 24 - Prohibition of employment of children in factories, etc.

4. Right to Freedom of Religion Article 25 - Freedom of conscience of free pursuit of profession, practice and propagation of religion. Article 26 - Freedom to manage religious affairs. Article 27 Freedom as to payment of taxes for promotion of any particular religion. Article 28 Freedom as to attendance religious instruction or religious worship in certain educational institutions. at

5. Cultural and Educational Rights Article 29 minorities. Protection of interests of Article 30 - Right of minorities to establish and administer educational institutions. 6. Right to Constitutional Remedies Article 32 Remedies. Right to Constitutional

ARTICLE 355 Duty of the Union to protect States against external aggression and internal disturbance. It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.

The word aggression was examined and its import gone into by the Supreme Court in Sarbananda Sonowal’s case, (2005) 5 SCC 665.

INTER PLAY 1. Human Rights. 2. Armed Forces. 3. Higher Judiciary.

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

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)

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 SECTION 6 Prior sanction of the Central Government before instituting any prosecution, suit or other proceedings.

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.

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.

NHRC AND ARMED FORCES (Sec 19 of Protection of Human Rights Act) 1. Procedure with respect to Armed Forces. Notwithstanding anything contained in this Act, while dealing with complaints of violation of human rights by members of the armed forces, the Commission shall adopt the following procedure, namely: - (a) it may, either on its own motion or on receipt of a petition, seek a report from the Central Government. (b) after the receipt of the report, it may, proceed with the complaint or, as not be, may case the make its recommendations to that Government. either

2. The Central Government shall inform the commission of the action taken on the recommendations within three months or such further time as the Commission may allow. 3. The Commission shall publish its report together with its recommendations made to the Central Government and the action taken by the Government on such recommendations. 4. The Commission shall provide a copy of the report published under sub-section (3) to the petitioner or his representative.

CASE LAW

REACH OF DECISIONS 1. 2. 3. 4. 5. 6. 7. 8. Validity of AFSPA. Guidelines in Naga People’s case. Control on power of military. Aggression and war. Custodial violence. Disappearance of a detenu. Imposition of death sentence. Compensatory justice.

Naga People’s Movement of Human Rights V Union of India; AIR 1998 SC 431; (1998) 2 SCC 109

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.

GUIDELINES ON NAGA PEOPLE’S CASE In a case where despite the police station located a stone’s throw away, no effort was made by the Army to convey the information regarding the deceased to the police at the earliest and the police was called only in the morning after the deceased had been done to death. Held, application of the guidelines referable to Section 6 and in Naga people’s case cannot be mechanically applied and must of necessity relate to the facts of each case. Herein, the time gap between the arrest and the death was clearly minimal. Masooda Parveen V Union of India; (2007) 4 SCC 548

CONTROL ON POWERS OF MILITARY Fundamental Rights cannot be given away to the control of military authorities or tribunals. CS RAO V THE SUPREME COMMANDER

AGGRESSION AND WAR The word ‘aggression’ is not to be confused only with ‘war’. Though war would be included within the ambit and scope of the word ‘aggression’ but it comprises many other acts which cannot be termed as war.

The word aggression is an all comprehensive word having very wide meaning having complex dimensions. Its meaning cannot be explained by a straitjacket formula but will depend on the fact situation of every case and its impact. For example, there could be a unique type of bloodshed aggression from a vast and incessant flow of millions of human beings forced to flee into another State. If this invasion of unarmed men in totally unmanageable proportion were to not only

impair the economic and well being of the receiving victim State but to threaten its very existence it would have to be categorised as aggression. In such a case, there may not be use of armed force across the frontier since the use of force may be totally confined within one’s territorial boundary, but if this results is inundating the neighbouring State by millions of fleeing citizens of the offending State, there could be an aggression of a worst order.

The stand of India before the UNO has been that influx of large number of persons from across the border into India would be an act of aggression. The definition of aggression as adopted by the UN General Assembly Resolution 3314 was, for a limited purpose, namely, where the Security Council or UNO could interfere and adopt measures in the event of an aggression by one nation against another and the acts enumerated therein which may amount to aggression. This definition cannot restrict or curtail the meaning or the sense in which the word aggression has been used in Article 355 of the Constitution. Sarbananda Sonowal V Union of India; (2005) 5 SCC 665

CUSTODIAL VOLENCE (in the context of Police) Torture, rape, death in police custody/lock up infringes Article 21 as well as basic human rights and strikes a blow at rule of law. Torture involves not only physical suffering but also mental agony. It is naked violation of human dignity and destructive of human personality. Interrogation though essential must be on scientific principles. Thirddegree methods are totally impermissible. Custodial death is one of the worst crimes in civilised society. State terrorism is no answer to terrorism. Transparency of action and accountability are two safeguards against abuse of police power. DK Basu V State of West Bengal; (1997) 1 SCC 416; AIR 1997 SC 610

DISAPPEARANCE OF A DETENU Now what remains to be seen is as to what relief the petitioner is entitled to missing of precious and valuable life from the custody of the respondent is definitely an act of infringement of fundamental rights. Although precious life cannot be measured in terms of Rupees in the light of various judgements of the Apex Court, the petitioner is at least entitled to adequate compensation at this stage…… The Union of India is vicariously liable for any acts or commission of its instrumentality even if they acted beyond their authority. Zukheli Sema, Smt. V Union of India; 1999 Cri LJ 70 (Gauhati)

IMPOSITION OF DEATH SENTENCE Accused members of Veerappan gang causing death of 22 persons and injuries to several others by blasting of landmines. Trial was held under Terrorist and Disruptive Activities (Prevention) Act, 1987. Accused were awarded life imprisonment. A question arose, when would the imposition of death sentence be valid by enhancing of life imprisonment.

Held, the nature of crime and accused should be considered. Aggravating and mitigating circumstances should be weighed in the context of facts and circumstances of the case. That accused persons were compelled to join the gang by the gang leader cannot be considered as a mitigating circumstance in isolation. Simon & others V State of Karnataka; (2004) 2 SCC 694

COMPENSATORY JUSTICE Nobody is authorised under the mandate of the Constitution to take away the right of life and liberty of a person except according to procedure established by law. Respects for the rights of individuals is the bedrock of true democracy. It is the bounden duty of the State to repair the damage done by its officers to the individual’s rights. In order to prevent the violation of such right reasonably and also to secure the due compliance of Article 21, it is needed to mulch its violations in the payment of monetary compensation. Tekarongsen Sir and others V Union of India; Guwahati High Court (Imphal) WP No. 591 of 1999. Order dated 24 April, 2001

PROPRIETY OF BIAS AGAINST STATE AS A LITIGANT PARTY In an investigation based only on affidavits, with a hapless and destitute widow in utter despair on the one side and the might of the State on the other; the search for the truth is decided by unequal and the court must therefore tilt just a little in favour of the victim. Masooda Parveen V Union of India; (2007) 4 SCC 548

The acceptance of indiscipline is even more disastrous than indiscipline itself. Nani Palkhivala

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

No system of justice can rise above the ethics of those who administer it. Wickersham Commission

THANKS