Report: UN Special Rapporteur on extra-judicial, summary or arbitrary executions, Christof Heyns has called for repeal of all draconian laws including Armed Forces Special Powers Act (AFSPA), Disturbed Areas Act (DAA) and Public Safety Act (PSA) from occupied Kashmir.
Releasing an interim report of his 12-day visit to India and occupied Kashmir, the UN Special Rapporteur told reporters in New Delhi on March 30, “AFSPA allows the state to override rights. Such a law has no role in a democracy and should be scrapped.”
“The contentious law has become a symbol of excessive state power and has resulted in consuming innocent lives in Jammu and Kashmir and Assam,” he said.
Terming AFSPA a clear violation of international law, Heyns said that its repeal would send out a powerful message that instead of a military approach, India was committed to respecting the right to life of all people.
Accountability is circumvented by invoking AFSPA’s requirement of obtaining prior sanction from the Indian government before any civil prosecutions can be initiated against armed forces personnel, he said.
“Information received through RTI (Right to Information) applications shows that this immunity provision effectively blocks any prosecution of members of the armed forces,” he added.
The UN official said that the powers that authorities had to override rights in these areas (Kashmir and Assam) were more extensive than they would be under a state of emergency “since the right to life is in effect suspended, and this is done without the safeguards applicable to states of emergency.”
“This law has been described to me as 'hated,' and a member of a (Kashmir) human rights commission has called it draconian,” said Heyns, who also visited Kashmir ahead of the news conference.
Noting that India’s National Human Rights Commission is also in favour of its repeal, Heyns challenged the constitutionality of the special powers act. In addition, he said, the other laws that are not in conformity with the international standards, including the Code of Conduct on Extrajudicial Executions, should also be repealed. In this regard he pointed to Public Safety Act, Disturbed Areas Act, etc that are in force in occupied Kashmir.
"The main finding in my report is that despite constitutional guarantees ….. extrajudicial killings continue in India. It is a matter of serious concern," Heyns said.
In the face of reports of fake encounters and mass graves in the Valley, Heyns recommended that as a counter to impunity for extrajudicial executions, where the police cause the death of a person in an “encounter”, the registration of FIR under Section 302 against the police should be made mandatory. It should be followed by an independent investigation of the matter and it should be left to a competent court to decide whether the police acted in self-defense or committed culpable homicide.
In another significant recommendation, the UN official said that the National Human Rights Commission of India should be given the mandate to investigate the actions of the armed forces. There should not be a year cut-off date on such cases, which they can consider, he suggested.
Seeking a greater role for the UN, he said that the practice of inviting UN special procedures be continued particularly in areas where international concerns had been expressed.
However, Heyns was defensive when asked if the views and opinions that he came across in Jammu were compatible with the expressions he heard in the Valley. “The civil society in both the places (Jammu and Kashmir Valley) was concerned about the abuse of power by the official machinery,” he observed.
Commenting on the use of force by the state actors, he said that disproportionate use of force during demonstrations in the Valley had resulted in the death of over 100 youth in 2010. In comparison, he stated, in Delhi and elsewhere many demonstrations take place without bloodshed.
He rued that a practice of fake encounters had developed in some areas, a reference to Kashmir. “Those killed are then portrayed as aggressors who had first resorted to opening fire and the police escape legal action,” he further observed.
The report also expressed serious concern over prevalence of communal violence, encounter killings, custodial deaths, honour killings and plight of dalits and adivasis in India. Heyns proposed a number of provisional steps to be taken to address these concerns, including the establishment of a Commission of Inquiry, consisting of respected lawyers and other community leaders.
“India also should ratify a number of international treaties, including the Convention Against Torture and the International Convention for the Protection of All Persons from Enforced Disappearance,” he demanded.
UN Special Rapporteur is set to draft a report of his findings and his final recommendations, which he will present to the UN Human Rights Council next year.