Follow-up report of recommendations: India by Special Rapporteur on EJE, Christof Heyns
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18 June 2015

Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns
“FOLLOW-UP OF RECOMMENDATIONS: INDIA”

The Civil Society Coalition on Human Rights in Manipur and the UN (CSCHR) presents a summary of the salient features of the follow-up report of the Special Rapporteur (SR) on extrajudicial, summary or arbitrary executions, Christof Heyns, which he will be presenting to the Human Rights Council 29th session in Geneva later today. The report analyses the steps taken by India to implement the recommendations contained in the mission to India report made following his visit to the country from 19 to 30 March 2012. The follow-up report was prepared on the basis of all available information and was completed on 30 April 2015. The Special Rapporteur requested information from the Government and from other actors on the steps that had been taken to implement the recommendations made. While acknowledging that some steps have been taken since his visit to address human rights violations and in support of victims of terrorist-related activities, the independent expert urges the Government of India to implement the recommendations contained in the visit report in so far as this has not been done. He says that impunity remains a serious challenge, as does the implementation of existing guidelines and directives issued by the courts and national human rights institution.

After that official visit in 2012, during which he also visited Guwahati in the North Eastern region upon the invitation of CSCHR, the SR had reported extrajudicial killings by security officers, the State Police, Armed Forces and armed groups. He also reported killings related to communal violence and practice affecting women rights to life as a serious problem in some areas of the country. In addition, he noted a number of challenges at various stages of the accountability process leading to impunity in many instances. Significantly, the SR raised the question of the AFSPA 1958 strongly and reported to the UN that “the powers granted under AFSPA are in reality broader than that allowable under a state of emergency as the right to life may effectively be suspended under the Act and the safeguards applicable in a state of emergency are absent. Moreover, the widespread deployment of the military creates an environment in which the exception becomes the rule, and the use of lethal force is seen as the primary response to conflict.

This situation is also difficult to reconcile in the long term with India’s insistence that it is not engaged in an internal armed conflict. The Special Rapporteur is therefore of the opinion that retaining a law such as AFSPA runs counter to the principles of democracy and human rights. Its repeal will bring domestic law more in line with international standards, and send a strong message that the Government is committed to respect the right to life of all people in the country.”

The SR had made a number of recommendations regarding the need to reform laws, and policies to ensure the accountability of State actors for violations of the right to life, including the repeal of AFSPA; the establishment of a commission of inquiry into extrajudicial executions in India, which should also serve a transitional justice role; the need to increase the protection of civilians, especially vulnerable groups, through legal reform as well as information and awareness-raising campaigns and increased sensitization and orientation programmes; and the need to strengthen State institutions, including the judiciary and the National Human Rights Commission (NHRC).

The SR mentions in his follow-up report that the Supreme Court of India appointed a commission on 4 January 2013 to inquire into six alleged cases of extrajudicial executions in Manipur, to report on the functioning of the State Police and the Security Forces in the state of Manipur and to make recommendations for keeping the police and security forces within the legal bounds without compromising the fight against insurgencies. The Commission also addressed the larger question on the role of the police and the security forces in Manipur. However, much remains to be done to address and prevent extrajudicial killings and to ensure accountability. Often, guidelines provided by the courts or the NHRC and recommendations by commissions of inquiry remain on paper with little or no implementation on the ground. Impunity continues to prevail with various legislative provisions and practices that hinder full and proper accountability. The result is that vulnerable persons, including women, marginalized communities, human rights defenders, victims and witnesses, continue to remain at risk of violence, often resulting in death.

The present report mentions that no independent and accountable mechanism to monitor the registration of First Information Reports (FIRs) exists. The SR also regrets that India has not followed the recommendation that it repeal or at least radically amend AFSPA to ensure that legislation regarding the use of force is brought in line with international human rights law and to remove all legal barriers for the criminal prosecution of members of the armed forces.

The SR’s report mentions that the Government has failed to implement his recommendation that autopsies be carried out in conformity with international standards and that the families of victims be given full and easy access to autopsy reports, as well as death certificates and other relevant documentation to allow them to proceed with the closure of the cases. The SR also regrets that India has not ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol, nor has and Punishment and its Optional Protocol; and the International Convention for the Protection of All Persons from Enforced Disappearance been ratified. He also reports that India has not implemented his recommendations for the government to consider the ratification of (a) the two Optional Protocols to the International Covenant on Civil and Political Rights; (b) the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women; (c) the Rome Statute of the International Criminal Court; and (d) the two Protocols additional to the Geneva Conventions.

The SR has expressed concern that non-State actors resorting to the use of deadly violence have threatened the lives and security of civilians and the security of India and strongly condemns the callous nature of these acts. The State has a duty to protect its people from such acts of violence, but should do so in accordance with international human rights standards. The SR recommended that the State ensure that command and/or superior responsibility be applied for violations by security officials of the right to life, and that the establishment and effective functioning of the Independent Police Complaints Authorities should be made a priority in all states. The SR regrets that, according to the information received, that responsibility remains absent. In his country visit report, the SR recommended that promotions and other types of awards for security officers suspected to have been involved in unlawful killings should not be granted until the facts are fully clarified that “no out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt”.

In this regard, the SR welcomes the order of the Supreme Court and calls upon the Government to ensure its full and proper implementation. He also notes that police officers who have been suspended upon their arrest in cases of suspected extrajudicial killings and charged with extrajudicial killings have been reinstated in senior positions in the police force by the State. The SR is concerned that this will encourage impunity and may impede the criminal trials against the reinstated officers. The SR also recommended that the Government put in place a mechanism to regularly review and monitor the status of implementation of the directives of the Supreme Court and the NHRC guidelines on arrest, encounter killings, and custodial violence and death. He notes that, so far, no mechanism has been put in place to undertake the review and monitoring as recommended.

The SR had recommended that the State ensure, in addition to the payment of compensation to the victims or their families, that criminal investigations, prosecutions and trials be launched and conducted in a swift, effective and impartial manner in all cases of unlawful killings, irrespective of the status of the perpetrator. The practice of paying compensation to victims or their families has often replaced prosecution. While compensation is crucial in redressing violations, it should never replace the investigation and prosecution of alleged perpetrators. The investigations and prosecutions must be launched in a swift, effective and impartial manner. But this recommendation has not been implemented.

In his country visit report, the SR expressed concern over the increased targeting of human rights defenders, by both State and non-State actors. Journalists and human rights defenders often fall victim to the violence between armed groups and the Government. The SR recommended that the State establish an effective witness and victim protection programme. No programme has yet been created by the State.

In order to strengthen the NHRC, the SR recommended that the State amend section 19 of the Protection of Human Rights Act to provide the Commission with express authorization to investigate members of the armed forces for alleged human rights violations. No steps have been taken by the State to amend section 19.

In his country visit report, the SR recommended that the independence and the functioning of State human rights commissions be reviewed to ensure compliance with the Principles relating to the status of national institutions (Paris Principles). The SR is not aware of any such review under way in the State. There is a need for fully independent bodies to be established to ensure that investigations are properly conducted and perpetrators are held to account.

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