India: UN Rapporteur recommends AFSPA, PSA repeal

The UN Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya, has recommended the repealing of Armed Forces Special Powers Act AFSPA) and Jammu and Kashmir Public Safety Act (PSA).
She has made the recommendation in her report. Sekaggya visited India from January 10 to 21 last year to assess the current situation of human rights defenders. She also paid a visit to Kashmir.
The report besides throwing light on AFSPA and PSA, also refers to Jalil Andrabi’s killing, Shopian “rape and murder”, killing of journalists and press censorship during the civilian unrest. It has also made certain recommendations for protecting the human rights defenders.
About Kashmir her report says,“The Special Rapporteur was deeply disturbed by the large number of cases brought to her attention during the course of her visit by defenders who claimed to have been targeted by the police and security forces under counter-terrorism legislation such as the Unlawful Activities (Prevention) Act, the Armed Forces (Special Powers) Act (AFSPA) and the Jammu and Kashmir Public Safety Act . The Special Rapporteur was told that these laws are being arbitrarily applied, particularly, but not solely, in areas where internal conflict or severe civil unrest exist, to provide legal grounds for a number of human rights violations against defenders. In addition, the Special Rapporteur is of the view that the broad and vague definitions of terrorism contained in these security laws, including the Unlawful Activities Prevention Act, have allowed the State apparatus to wrongfully target defenders.”
The special Rapporteur said in the case of Jalil Andrabi, a lawyer who denounced abuses committed by security forces and whose body was later found after he had spent several days in military custody, justice has reportedly not been done. An alleged perpetrator was identified and, despite a High Court order to arrest him, he managed to flee abroad. Furthermore, investigations in the suspected involvement of four other individuals in Andrabi’s murder have not taken place.
About Shopian incident, report said, a girl allegedly gang raped and killed by the military, criminal charges were filed against lawyers, witnesses, doctors and neighbours who pointed to the military. Members of the committee established in her memory, who always gathered peacefully, were reportedly physically abused by the Central Reserved Police Force. Passport applications by family members were denied. Similarly, in the case of a girl’s disappearance since 2002, her parents were denied passports. The police also allegedly used abusive language against them.
In addition, widows and other relatives of disappeared have been harassed and intimidated because of their advocacy work. Families have been pressured to withdraw their complaints in order to receive ex gratia release, the report added.
“ Parvez Imroz, an advocate and president of the Jammu Kashmir Coalition of Civil Society, has faced repeated harassment because of his work in denouncing impunity for human rights violations by security forces in the state, including extrajudicial executions, enforced disappearances and torture. In 2008, security forces reportedly attacked his home at night in reprisal for having report a few months earlier published on alleged mass graves. The same year, Imroz was arrested and beaten by police officers, along with several other persons, while monitoring a demonstration during the first phase of the state legislative election in Bandipora. He was accused of instigating the rally which turned violent. Imroz was also prevented from traveling abroad to receive an award for his human rights achievements by not having his passport renewed. He further stressed the unique situation of defenders in the state, who receive little attention from Indian NGOs outside the state,” the UN report said.
It added that the lawyers operating in Jammu and Kashmir were asked by the authorities whether they were with them or against them. Six lawyers were killed in recent years because they were representing victims of human rights violations.
The President of the Jammu and Kashmir High Court Bar Association in Srinagar was arrested allegedly because of his legal advocacy for the detained and disappeared in Jammu and Kashmir.
Student activism in Jammu and Kashmir is reportedly banned: for instance, students are not allowed to criticize fee hikes. Students in Kashmir are profiled by intelligence services and often branded as separatists, as was the case of one student who was falsely charged and his house raided. Some security forces came to the house of another student, armed with weapons, to intimidate his parents.
About journalists, the UN report stated that in Jammu and Kashmir, at least 10 of them have been killed since 1990, allegedly by armed forces and by non-state actors. There were reportedly no investigations conducted in those killings.
Journalists stated that they have been approached by both parties to the conflict to join them, but always refused in order to stay impartial and objective. Journalists who covered protests in the streets were on some occasions slapped by law enforcement authorities who branded them as “enemies”, and had their equipment damaged. They reportedly lodged complaints, to no avail. They also mentioned the difficulty in accessing information from the authorities and, when accessed, to publish it. The violence in the summer 2010 was reportedly marked by an unprecedented censorship by the authorities.
“Given the particular risks faced by human rights defenders, the Special Rapporteur believes that the absence of legislation on the protection of human rights defenders is a significant lacuna. The adoption of such a law, and its full implementation, would contribute to the improvement of their situation,” the report said.
The the then chairman of the Jammu and Kashmir Human Rights Commission had told the special Rapporteur that shared figures of human rights abuses in general where the police were the perpetrators. During his time, the state commission has not received many cases of defenders and such cases are generally minor, with few complaints of killings or arrests.
The chairman of SHRC said police had not been sensitized to human rights, as torture, killings and custodial death by the police and paramilitary forces are frequently brought to their attention.
The Special Rapporteur acknowledges the security challenges faced by India but she remains disturbed by the draconian provisions of the public security laws, such as the maximum period of pre-charge detention that goes beyond internationally recognized limits, the excessive powers of the police to search and arrest, and the presumption of guilt under certain circumstances. In addition, administrative detention places detainees beyond judicial control and hence at risk of serious human rights violations. She said she is encouraged by the announcement made by chief minister in October 2011, stating that “the gradual improvement in the security scenario and restoration of peace has paved the way for revocation of AFSPA in peaceful areas of the state.”
“India is now a political and economic heavyweight. Yet, as many other States, it has a number of challenges to overcome. There is an excellent array of laws in place,which need to be fully implemented. Others – which are outdated and not in conformity with international human rights standards – must be repealed. Defenders face multiple challenges and dangers in their daily work and the State has the responsibility to protect them. Government authorities, including security forces, and the judiciary and human rights commissions, at the central and state levels, need to do much more to ensure a safe and conducive environment for defenders. Full accountability for violations against defenders is an absolute priority and the perpetrators must be brought to justice on a systematic basis,” the report said.
It added that India should be proud of its human rights defenders, who are a key asset in advancing human rights and democratic governance. In an environment where economic liberalization and rapid economic growth have transformed many sectors and lives, but where the dividends have not been shared by others, human rights challenges are growing. For this reason, it is vital that human rights defenders have an environment where they can operate freely and safely without fear.
“A comprehensive, adequately resourced protection programme for human rights defenders and witnesses at the central and state levels and in conjunction with the National and State Human Rights Commissions should be devised. This programme could be funded by the State, but should not be closely controlled by the State apparatus. In particular, it should not be associated with State agencies, such as the police, security agencies and the military. The process for applying for protective measures provided under such a programme should be cost-free, simple and fast, and immediate protection should be granted while the risk situation of the person is being assessed. When assessing the risk situation of a defender or witness, the specificities of his/her profile pertaining to caste, gender and ethnic, indigenous and/or religious affiliation, inter alia, should be systematically taken into account. Finally, the personnel assigned to the protection of defenders or witnesses should not gather information for intelligence purposes,”the report viewed.
The Special Rapporteur stated that security forces should be clearly instructed to respect the work and the rights and fundamental freedoms of human rights defenders, especially the categories of defenders mentioned in the present report.
She added that sensitization training to security forces on the role and activities of human rights defenders should be significantly strengthened as a matter of priority, with technical advice and assistance from relevant United Nations entities, NGOs and other partners.
The other important recommendations of Special Rappoirteur are as following, “ Prompt, thorough and impartial investigations on violations committed against human rights defenders should be conducted, and perpetrators should be prosecuted, on a systematic basis. Fair and effective remedies should be available to victims, including those for obtaining compensation.
The Supreme Court judgment on police reform should be fully implemented in line with international standards, in particular at the state level.
A law on the protection of human rights defenders, with an emphasis on defenders facing greater risks, developed in full and meaningful consultation with civil society and on the basis of technical advice from relevant United Nations entities, should be enacted.
Necessary steps should be taken to recognize the competence of United Nations human rights treaty bodies to receive individual complaints, which will provide human rights defenders an opportunity to access another procedure to address violation of their rights.
The functioning of the National Human Rights Commission should be reviewed with a view to strengthening it by, inter alia, increasing its capacity to improve its case-handling function; broadening the selection criteria for the appointment of the Chair; diversifying the composition of the Commission, including regarding gender; extending the one-year limitation clause; and establishing an independent committee in charge of investigating allegations of violations by State agents. The Human Rights Act should be amended as necessary in full and meaningful consultation with civil society.
The capacity-building and resources of existing SHRC should be reinforced.
Central and state Governments should continue collaborating with Special Procedures of the Human Rights Council.
Wherever relevant, current or former members of the police, security agencies and the military serving in the National Human Rights Commission or the State Human Rights Commissions should not be involved in any part of investigations into
allegations of human rights violations by State actors, as they may have political and ideological allegiances to the accused implicated in the case and may have the capacity to influence the outcome.
The supportive role of the Commissions for human rights defenders should be strengthened by inter alia, conducting regular regional visits; meeting human rights defenders in difficulty or at risk; undertaking trial observations of cases of human rights defenders wherever appropriate; denouncing publicly on a regular basis violations against defenders and impunity. The defenders focal point should play a leading role in that regard. This focal point should be a member of the Commission, and have a human rights defender background to fully understand the challenges faced by defenders.
A fast-track procedure for defenders within the National Human Rights Commission and State Human Rights Commissions should be considered.
The visibility of the commissions should be enhanced through regular, proactive and meaningful engagement with civil society and the media.
A toll-free 24-hour emergency hotline for human rights defenders should be established and widely publicized. Such a hotline should be available in the main languages spoken in India.
The National Human Rights Commission should intervene on the issue of the Foreign Contribution Regulation Act and should monitor the denial of registration and permission to receive foreign funding for NGOs, with a view to amending or repealing the bill.
The Commissions should monitor the full implementation by India of recommendations made by United Nations human rights mechanisms, including special procedure mandate-holders, treaty bodies and the universal periodic review. Such a monitoring role should apply to the recommendations contained in this report.
The statutory commissions should be allocated adequate human and financial resources to fully carry out their mandates.
The judiciary should be vigilant and cognizant of the role of human rights defenders.
The judiciary should take proactive measures to ensure the protection of human rights defenders at risk, witnesses and victims.
The judiciary should ensure better utilization of suo motu whenever cases of violation against human rights defenders arise.
Platforms or networks aimed at informing and protecting defenders, facilitating dialogue and coordination among defenders should be devised or strengthened.
Defenders should better acquaint themselves with the Declaration on Human Rights Defenders.
Efforts should be made to continue making full use of United Nations special procedures and other international human rights mechanisms when reporting on human rights violations.
Recommendations for the consideration of the international community and donors:
The situation of human rights defenders, in particular the most targeted and vulnerable ones, should be continually monitored and support for their work should be expressed through, inter alia, interventions before central and state institutions.
Efforts should be intensified in empowering civil society, including by increasing their capacity.
Recommendations for the consideration of all stakeholders
The Declaration on Human Rights Defenders should be translated into the main local languages and widely disseminated.”

Source: Kashmir Watch (http://kashmirwatch.com/humanrights.php/2012/02/15/un-rapporteur-recommends-afspa-psa-repeal.html) 15/2/2012