The government of India in a ‘Memorandum of Action Taken’ of December 2003 on the 2001-02 annual report of the National Human Rights Commission (NHRC) of India has rejected the NHRC’s demand for amendment of Section 19 of the Human Rights Protection Act (HRPA) of 1993 citing ‘compulsions of fighting cross-border terrorism’ and ‘widespread politicisation of human rights issues’. Section 19 clearly outlines the procedure with respect to the armed forces while dealing with complaints of violation of human rights and states that:
(1) 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, either not proceed with the complaint or, as the case may be, make its recommendations to that Government.
(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 that 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.
Thus, the NHRC may seek a report from the Central Government and after the receipt of the report, it may, either drop proceedings or make recommendations to the government. Under this clause, the NHRC basically serves as the glorified post box and it has been demanding amendment of the section for the last few years.
According to the 2002-03 Annual Report of the Ministry of Home Affairs of the Government of India, 14 out of 28 States in India are afflicted by internal armed conflicts. Hundreds of thousands of armed personnel of the para-military forces under the control of the Government of India and the Army have been deployed in various states. There have been consistent and credible reports of serious human rights violations by armed forces such as torture, rape, extrajudicial executions and death in custody.
The NHRC’s annual reports provide some of the testimonies to the human rights violations committed by the armed forces. In its 1999-2000 Annual Report, NHRC cites the case of tragic massacre in Bijbehara, Jammu and Kashmir that occurred on 22 October 1993. Approximately 60 people were killed at and around Bijbehara in Jammu and Kashmir by Border Security Force (BSF) personnel. The NHRC took suo motu action on the basis of the press reports and issued notices on 1 November 1993 to the Ministries of Defence and Home Affairs of the government of India and the state government of Jammu and Kashmir. The Ministry of Home Affairs informed the NHRC that 37 persons had died and 73 others had been injured as a result of the firing in the incident. In an order on 17 January 1994, the NHRC, among others, recommended that “Given the gravity of the occurrence in Bijbehara, a thorough review should be undertaken by government of the circumstance and conditions in which units of the Border Security Force are deployed and expected to operate in situations involving only civilian population”. In a letter dated 12 November 1996, AK Tandon, Director General, Border Security Force informed the NHRC that “a General Security Force Court [GSFC] trial was conducted in respect of the 12 BSF personnel involved in the said incident, but that confirmation of the trial was being withheld for the time being as additional ROE was to be conducted against Sub-Inspector Mahar on a charge of u/s 302 of the Ranbir Penal Code [RPC] as applicable in the state of Jammu and Kashmir”. Tandon also informed that the trial of Sub-Inspector Mahar Singh by GSFC was concluded on 30 October 1996 and the accused was found not guilty.
In a further order on 16 March 1998, the NHRC stated that before taking any final view in the matter, it first wanted to review the proceedings on the issue. It directed the Ministry of Home Affairs for production of the records of the proceedings of the trial conducted by the Staff Court of Inquiry, the proceedings of the trial held by the GSFC and the record of the administrative proceedings. The Ministry of Home Affairs did not honour this request and expressed the ‘inability of the Government of India to show records of GSFC to any authority other than those provided under the Border Security Force Act’. Consequently, NHRC was ‘compelled to move a writ petition before the Supreme Court, after being denied the records that it sought from the Home Ministry of the trial that was held by the General Security Force Court (SCOI)’. The writ petition was later withdrawn by the NHRC under mysterious circumstances.
The Bijbehera case is not an exception. The NHRC also expressed deep concern that those responsible for the abduction and subsequent killing of the prominent advocate of Srinagar, Jalil Andrabi, are yet to be brought to trial. His body was recovered from the Jhelum river on 27 March 1996 with a single bullet wound to his head, three weeks after he was abducted at gun-point by a group of men allegedly in Indian para-military uniform. In its 1999-2000 annual report, NHRC stated, “It is a matter of despair to the afflicted family, and to those who are interested in the promotion and protection of human rights in the country, that the Commission’s insistent call that the killers be tracked down and brought to book has met with little practical response and a single line comment in the Memorandum of Action Taken that was submitted to Parliament in respect of the Annual Report for 1998-99. The Memorandum stated: the matter is sub judice”. A similar situation of opacity persists in regard to the ‘disappearance’ and probable killing of Jaswant Singh Khalra in the Punjab, the perpetrators of the crime remaining at large, to the continuing discredit of the apparatus of State and the deepening concern of human rights activists.
Given such occurrences of enforced disappearances and extra-judicial killings, the NHRC requested the Government of India to direct the armed forces, including the para-military forces, to report to the NHRC – as does the police – any cases that might occur of the death of persons while in their custody. It fell into deaf ears of the Ministry of Home Affairs. The obfuscation of justice by the government of India does not end there. Even the Annual Reports of NHRC are withheld and not submitted to the Parliament in time. Not surprisingly, in its latest 2001-2002 Annual Report the NHRC states, “The delays (in making its annual reports public) have amounted to the denial of right to information… The delay in tabling the annual report before Parliament has resulted in a corresponding delay in releasing its contents to the public. In the process, both the elected representatives and the public have, in effect, been denied timely and comprehensive information on the work and concerns of the Commission”.
The NHRC rightly urged that impunity to the armed forces brings no credit to the government and the security forces and “it thwarts the purposes of justice and the prime objective leading to the establishment of this Commission, namely the need to ensure the ‘better protection’ of human rights in the country”. The impunity to the armed forces and insinuation against the NHRC make India worthy of a banana republic.