III. Legal Causes of Abuses and Impunity
Several Kashmiris interviewed for this report said that while they understand that there is an ongoing conflict that can result in deaths and injuries, what they find particularly unbearable is the lack of accountability. Many Kashmiris who had been illegally detained or tortured, or those who suspect their relatives were victims of extrajudicial executions by troops, said they would not lodge complaints as that would only lead to harassment and would not result in justice because the government was unwilling to act against its troops.
This is because of the lack of commitment from Indias political and security force leaders to hold officials and troops accountable, and a series of Indian laws that make it difficult or impossible to prosecute abusers in the employ of the state. This has led to a serious climate of impunity in Jammu and Kashmir.
Impunity occurs when perpetrators of human rights violations are not held accountable by the state for their actions.81 Impunity can be divided into two types. De facto impunity takes place when the state fails to prosecute for lack of capacity or will, often for political reasons, such as state support for the abuses or to protect high-ranking officials or state institutions. De facto impunity has been rampant in Jammu and Kashmir state, where in even well-documented abuse cases there is no political will to prosecute. The second kind of impunity is de jure impunity, in which laws or regulations providing immunity or amnesty make it difficult or impossible to prosecute a perpetrator for human rights abuses. India has several such provisions in its laws, aimed at shielding its military personnel and civilian officials from legal accountability. Such laws are contrary to the right to a remedy and reparation for gross violations of international human rights law.82 Both forms of impunity lead to more human rights violations and undermine faith in the government and security forces; de jure impunity sends a particularly negative signal to victims about state indifference and complicity in their suffering. This section sets out the various immunity provisions in Indian law that foster impunity, as well as laws that facilitate the excessive use of force.
While the special status of Jammu and Kashmir State under the Indian constitution means that it has a separate criminal code called the Ranvir Penal Code, army and paramilitary forces deployed in the state by the federal government are protected by the immunity provisions of the Criminal Procedure Code of 1973 that apply to the rest of India.
Section 45 of the Criminal Procedure Code protects any member of the armed forces from arrest by civilian authorities for
Section 197(2) of the Criminal Procedure Code is a sweeping immunity provision that applies throughout India. It makes it mandatory for a civilian prosecutor to obtain permission from the federal government to initiate criminal proceedings against public servants, including the armed forces. The Indian government argues that this provision was intended to prevent frivolous lawsuits against government employees. Yet it has been used to shield human rights abusers from accountability in the courts, thereby degrading the right to the equal protection of the law and the right to an effective remedy.84
Section 197(2) has been used to block the trial in civilian courts of members of the armed forces alleged to be responsible for human rights abuses. It provides that:
Permission is seldom granted even when an investigation by local law enforcement officials has strong evidence that a member of the security forces is responsible for a human rights violation. In Kashmir, Mian Abdul Qayoom, president of the Jammu and Kashmir High Court Bar Association, told Human Rights Watch that he estimated there to have been at least 150 cases since 1990 where the state government requested permission to prosecute members of the army or paramilitary forces for alleged human rights abuse but was refused or there was no response from the central government.86 Amnesty International said in 2005 that the Jammu and Kashmir government had made almost three hundred requests for permission to prosecute, but none were granted.87
Human Rights Watch has obtained a copy of a standard letter issued by the government of India in response to requests for launching prosecutions against suspected perpetrators in federal armed forces, which merely states that after due consideration of the facts and the circumstances of the case, the government has decided not to grant the sanction to prosecute.88
In addition to facilitating impunity, laws in force in Jammu and Kashmir encourage the security forces to use excessive lethal force in dealing with law and order problems, to commit arbitrary arrests, and to detain suspected militants in violation of the right to a fair trial. These laws on their face are contrary to international policing standards, particularly the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,89 and violate the due process provisions of the International Covenant on Civil and Political Rights.90
The Jammu and Kashmir Disturbed Areas Act and Armed Forces (Jammu and Kashmir) Special Powers Act
On July 5, 1990, the Jammu and Kashmir state government promulgated the Jammu and Kashmir Disturbed Areas Act. At the time, Jammu and Kashmir was under governors rule, so this act was the responsibility of the central government.
Under this act twelve districts of the state are deemed disturbed.91 In these areas, in sweeping language, the act empowers security forces personnel to use lethal force against any person indulging in any act which may result in serious breach of public order, acting in contravention of any law or order for the time being in force, or the carrying of weapons.92
The Armed Forces (Jammu and Kashmir) Special Powers Act is linked to the Disturbed Areas Act. Also promulgated in 1990, it authorizes the state government, governor, or central government to declare the whole or part of the state to be a disturbed area if it is determined to be in such a disturbed and dangerous condition that the use of the armed forces in aid of the civil power is necessary to prevent secessionist or terrorist acts.93 The act empowers officers, including non-commissioned officers, to:
Under Section 4(c) the armed forces are also empowered to arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest.95
Both the Jammu and Kashmir Disturbed Areas Act and the Armed Forces Special Powers Act provide immunity to those exercising powers under the acts. In identical language, both state that:
The immunity provisions in the Armed Forces (Jammu and Kashmir) Special Powers Act are used most often in Kashmir to prevent civilian prosecutors from prosecuting soldiers. When the state government asks the federal government for permission to prosecute those found responsible after police or magisterial inquiries, that permission is seldom granted.
These laws are based on the national Armed Forces Special Powers Act, which similarly provides immunity for soldiers.97 The AFSPA has its roots in British colonial legislation dating back to the 19th century and is based on a 1942 colonial ordinance intended to suppress the Indian independence movement.98
Under Indian law, there is no clear definition of what constitutes a dangerous or disturbed condition. Instead, this depends on the decision of government officials and is not subject to judicial review.99 The extraordinary powers provided under these acts have led to a number of deaths in Jammu and Kashmir. In some cases cited in this report, troops have opened fire on civilians without warning, resulting in deaths and serious injury. No legal action has followed.
In November 2004, following protests in Manipur after the extrajudicial execution of a woman by security forces, the central government set up a five-member committee to review the Armed Forces Special Powers Act. Several domestic and international human rights organizations, including Human Rights Watch, had previously called for a review of the Act.
The review committee submitted its report to the Home Ministry on June 6, 2005.100 While the report has still not been made public, some journalists reported that the committee recommended that the Act be repealed with some provisions incorporated into the Unlawful Activities (Prevention) Act, 1967.101
The Jammu and Kashmir Public Safety Act, 1978
The Jammu and Kashmir Public Safety Act (PSA), enacted in 1978 and amended in 1987 and 1990, also allows for immunity from prosecution, stating that:
The PSA is an overly broad and vague preventive detention law that allows the government to keep an individual in detention without trial for up to two years to prevent them from acting in any manner prejudicial to the security of the state or the maintenance of public order.103 The PSA is discussed in detail below in Section V, on arbitrary detention.
In 1993, responding to increasing criticism of human rights violations committed by its security forces, the Indian government established the National Human Rights Commission (NHRC) through the Human Rights Protection Act (HRPA).104 While a major step forward, human rights activists and the NHRC itself say that there are several restrictions in the law that prevent the commission from performing a meaningful role in addressing impunity. The National Human Rights Commission has repeatedly said that certain provisions of the HRPA need to be re-examined, as they were, in fact, tending to militate against the purposes of the Act itself.105
Under Section 19 of the HRPA, when the commission receives a complaint of a human rights violation by the armed forces, it cannot independently investigate the case but can only seek a report from the central government and make recommendations. Different governments of different political hues have consistently taken an uncompromising stance on Section 19. For example, although the HRPA was a Congress Party initiative, in 2002 the then ruling Bharatiya Janata Party-led coalition government also said that: The present system of enquiry by the forces and punishment of the guilty persons has been working satisfactorily and, in view of this, it is felt that there is no need to change the procedure that has already been spelled out in the Protection of Human Rights Act, 1993 for dealing with the armed forces.106
The National Human Rights Commission has criticized the governments position on the issue, stating that its experience leads to a different conclusion:
Section 19 is inconsistent with international standards for national human rights institutions. The Paris Principles on national human rights institutions provide that national institutions shall have the responsibility to submit to the government reports and opinions on [a]ny situation of violation of human rights which it decides to take up.108 A handbook on the establishment and operation of such institutions by the Office of the United Nations High Commissioner for Human Rights states:
Weaknesses in Military Court Jurisdiction
Indian law permits members of the Indian armed forces accused of crimes to be prosecuted by either the military or civilian justice systems. However, various statutes make trial by the civilian courts unlikely in practice. The Armed Forces Special Powers Act and other provisions noted above require prior approval of the central government for civilian prosecutions of military personnel.110 And under the Army Act, the military may transfer a soldier from civilian to military custody for offenses that can be tried by a court martial.111
Available information shows scant evidence that the military is fully and effectively prosecuting soldiers and officers for abuses committed in Jammu and Kashmir. In May 2004, Chief of Army Staff Gen. N.C. Vij informed the National Human Rights Commission that 131 army personnel, including officers, had been punished for rights violations in Kashmir since 1990 (fewer than ten per year). These included sentences of two life imprisonments, fifty-nine rigorous imprisonments, and eleven instances of one years imprisonment and dismissal. 112 However, to date the army has not publicly released details of any of these cases: no incidents described, no names of those sentenced, and no information on the crimes committed.113
The absence of a record of military prosecutions for serious abuses in Kashmir contradicts army chief Gen. J.J. Singhs assertion that commanders at all levels have been directed to ensure that all instances of indiscipline are thoroughly investigated and the guilty brought to book without undue delay.114 One high-profile case that highlights the militarys failure to prosecute its own is the 2000 killing in Pathirabal of five persons whom the army falsely claimed were militants. Military responsibility for the deaths became evident in 2001 when it was conclusively determined that those killed were local villagers, not militants. In 2006, the civilian Central Bureau of Investigation filed criminal charges against five military officers for these killings: for more than five years military prosecutors either failed to fully investigate the case or were simply unwilling to bring charges against the officers, whose cases are now pending before civilian courts. Even now, the various procedural obstacles to prosecuting military personnel in civilian courts make a trial in this case uncertain.115
Courts martial in India can readily be subject to manipulation by commanding officers. The officer who convenes a court martial selects the panel from among the officers under their command. A senior military lawyer concluded that this selection process makes the command influence of the convening officer, on whose order the prosecution is launched, over the court-martial all too pervasive.116 A retired military jurist likewise noted: Frequently, the members of the court martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings; in short, for their future progress in the service. Court martial members do not and cannot have the independence of jurors drawn from the general public or of civilian judges.117 While these problems affect all military trials, whether for routine indiscipline or serious rights abuses, they invariably are exacerbated when the victim is an alleged militant or a civilian wrongfully suspected of militant activity.
Of particular concern is the absence of civilian control over Indias military justice system. A genuinely independent and impartial judiciary must be separate from the executive branch of government.118 Unlike the U.K. and U.S. military justice systems, in which court-martial decisions can ultimately be appealed to a civilian court, Indian courts martial are purely a military affair. The retired military jurist considered Indian courts martial as simply executive tribunals whose personnel are in the executive chain of command.119 Even the Supreme Courts extraordinary appellate jurisdiction, the Special Leave Petition, does not extend to courts martial.120 A 1999 report of the Law Commission of India recommended the creation of a civilian Armed Forces Appellate Tribunal, a call that has gone unheeded.121 Ultimately the military justice system is problematic both for military defendants who feel they are being treated unfairly, and victims of abuses and their families who wish to see justice properly done.
81 The U.N. Commission on Human Rights has defined impunity as the impossibility, de jure or de facto, of bringing the perpetrators of violations to account - whether in criminal, civil, administrative or disciplinary proceedings - since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims. Report of the independent expert to update the set of principles to combat impunity, of the U.N. Commission on Human Rights, E/CN.4/2005/102/Add.1, February 8, 2005, p. 6.
82 See U.N. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (December 16, 2005), Part VIII, Access to Justice.
84 See International Covenant on Civil and Political Rights (ICCPR) (1976), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), entered into force March 23, 1976, Arts. 26 and 2. India became a party to the ICCPR in 1979.
86 Human Rights Watch interview with Mian Abdul Qayoom, president, Jammu and Kashmir High Court Bar Association, Srinagar, October 11, 2004. Amnesty International said in 2005 that there were almost three hundred cases that were forwarded to the federal government by the Jammu and Kashmir government for permission to prosecute, and permission was granted in none of them. Amnesty International, India: Briefing on The Armed Forces (Special Powers) Act, 1958, May 9, 2005, [online] http://web.amnesty.org/library/Index/ENGASA200252005?openandof=ENG-IND (retrieved February 14, 2006).
87 Amnesty International, Briefing on The Armed Forces (Special Powers) Act, 1958.
88 Copy of a letter refusing permission to prosecute made available to Human Rights Watch by the High Court Bar Association, October 2004.
89 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, August 27 to September 7 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 112 (1990).
90 Arts. 9 & 14, ICCPR (1976).
91 Annual Report 2004-2005, Ministry of Home Affairs, Government of India, p. 15.
92 The Jammu and Kashmir Disturbed Areas Act (4), 1990.
93 Armed Forces (Jammu and Kashmir) Special Powers Act (3), 1990, [online] http://www.satp.org/satporgtp/countries/India/states/jandk/documents/actsandordinances/J&K_Specialpoweract.htm (retrieved June 6, 2005).
94Armed Forces (Jammu and Kashmir) Special Powers Act (4)(a).
95 Armed Forces (Jammu and Kashmir) Special Powers Act (4)(c).
96Armed Forces (Jammu and Kashmir) Special Powers Act (7); The Jammu and Kashmir Disturbed Areas Act (6).
97 Armed Forces Special Powers Act (6), 1958, [online] http://www.satp.org/satporgtp/countries/india/document/actandordinances/armed_special_powers_act_1958.html (retrieved February 14, 2006).
98 Amnesty International, Briefing on The Armed Forces (Special Powers) Act, 1958.
99Asian Center for Human Rights, Review of AFPSA: Too Little, Too Late, November 3, 2004, [online] http://www.achrweb.org/Review/2004/45-04.html (retrieved February 14, 2006).
100 Armed Forces (Special Powers) Act Review Committee Submits Report, Press Information Bureau, Government of India, June 6, 2005, [online] http://pib.nic.in/release/rel_print_page.asp?relid=9607 (retrieved June 29, 2005).
101 Shishir Gupta, Scrap Armed Forces Law But Retain Bite: Panel to Center, The Indian Express, June 29, 2005, [online] http://www/indianexpress.com/print.php?content_id=73514 (retrieved June 29, 2005).
102Jammu and Kashmir Public Safety Act (22), 1978, [online] http://www.law.qub.ac.uk/humanrts/emergency/India/ind5.htm (retrieved June 15, 2005).
103 Jammu and Kashmir Public Safety Act (8).
104 Human Rights Act, 1993, [online] http://nhrc.nic.in/HRAct.htm (retrieved February 14, 2006).
105 National Human Rights Commission, Annual Report, 2001-2002, Chapter 2, (2.5), p. 10.
106 Memorandum of Action Taken, Government of India, April 2002, National Human Rights Commission, Annual Report, 2001-2002, p. 11.
107 National Human Rights Commission, Annual Report, 2001-2002, Chapter 2 (2.8), p. 11.
108 National institutions for the promotion and protection of human rights, G.A. res. 48/134, 48 U.N. GAOR Supp. (No. 49) at 252, U.N. Doc. A/48/49 (1993) (Paris Principles), Principle 3(c).
109 U.N. Centre for Human Rights, National Human Rights Institutions, No. 4 (Geneva: United Nations, 1995), p. 29.
110 Armed Forces Special Powers Act (6), 1958.
111 Army Act, Section 125, Criminal Procedure Code (1973), Section 475, provides that military personnel held in civil custody who could be tried by both civilian and military courts will be delivered to the commanding officer for trial by court martial.
112 National Human Rights Commission, NHRC takes up Human Rights violations with the Chief of Army Staff, May 27, 2004.
114 A Talk with the Chief: Gen. J.J. Singhs Views on Military Law, in Military Law: Then, Now and Beyond (New Delhi: Judge Advocate Generals Department, 2005), p. 6.
115 The military courts have largely remained impervious to outside judicial scrutiny. According to Col. Indra Sen Singh, the high courts, concerned about undermining military discipline by interfering in military affairs, have generally adopted a hands off attitude towards the [sic] military matters. Col. Indra Sen Singh, Military Justice System: Re-inforcing the Confidence, in Military Law: Then, Now and Beyond, p. 231.
116 Ibid., p. 235. Colonel Singh suggested that all members of the court martial be drawn from outside the jurisdiction of the convening authority.
117 Col. Y.R. Sharma (retd), Growth of Military Law, in Military Law: Then, Now and Beyond, p. 67.
118 As the International Commission of Jurists has noted:
International Commission of Jurists, Military jurisdiction and international law (Geneva: 2004), p. 28 (citations omitted).
119 Sharma, Growth of Military Law, in Military Law: Then, Now and Beyond, p. 67.
120 See Indian Constitution, Art. 136 (2). According to a lawyer at Naval headquarters, The only way in which a civilian court could consider the findings of a court martial is by way of the writ of Certiorari, Prohibition or Mandamus or Habeas Corpus. Under the writ jurisdiction, however, the civil courts have a very limited authority to interfere with the findings of court martial. Capt. Rakesh Kumar Mehta, NM, Need for a Court Martial Appellate Tribunal, in Military Law: Then, Now and Beyond, p. 197.
121 Law Commission of India, 169th report on Amendment of the Army, Navy and Air Force Acts (1999), quoted in A.K. Upadhyay, Recommendations of the Law Commission of India on Military Law, in Military Law: Then, Now and Beyond, p. 201. See also Mehta, Need for a Court Martial Appellate Tribunal, in Military Law: Then, Now and Beyond, p. 197. (In any democratic society there must be means available by which a convicted soldier can test outside the military legal system the legality of a judgment against him.)