3.2 The Commission
is therefore gratified that there has been major progress in successive
years, both at the national and at the international level, in clarifying
matters concerning the manner in which States should react on the
scourge of terrorism. The World Conference in Vienna marked a watershed
in this connection. The Declaration and Programme of Action then adopted
categorically asserted in its paragraph 17:
"The acts, methods
and practices of terrorism in all its forms and manifestations…are
activities aimed at the destruction of human rights…. The international
community should take the necessary steps to enhance cooperation to
prevent and combat terrorism."
3.3 Armed with
this consensus, the global community has since been able to proceed
further, in the United Nations General Assembly on the one hand, and
in the United Nations Commission on Human Rights and in its Sub-Commission
on prevention of Discrimination and Protection of Minorities, on the
other. In consequence, in series of resolutions adopted since 1994,
the world organisation has taken an increasingly clear view on two
inter-related subjects: "Human Rights and Terrorism" and
"Measures to Eliminate International Terrorism." The former
subject is covered, inter alia, by General Assembly resolutions 45/185
and 50/186 and the Commission of Human Rights resolutions 1995/43,1996/47
& 1997/43, while the latter is dealt with comprehensively in General
Assembly resolution 49/60, to which was annexed the 1994 Declaration
on Measures to Eliminate International Terrorism and resolution 51/210
to which was annexed a Declaration to Supplement the 1994 Declaration
on Measures to Eliminate International Terrorism.
3.4 It is worthwhile
to summarize briefly some of the salient concepts in these resolutions
and Declarations, as they seek to define the parameters within which
these vexed subjects should be considered. First, the resolutions
express the conviction "that terrorism, in all its forms and
manifestations, wherever and by whomever committed, can never be justified
in any instance, including as a means to promote and protect human
rights." Second, they contain an "unequivocal condemnation
of all acts, methods and practices of terrorism, regardless of their
motivation, in all its forms and manifestations, whenever and by whomever
committed, as acts of aggression aimed at the destruction of human
rights, fundamental freedoms and democracy, threatening the territorial
integrity and security of States, destabilizing legitimately constituted
Governments, undermining pluralistic civil society and having adverse
consequences on all economic and social developments of States."
Third, States are called upon "to take all necessary and effective
measures, in accordance with international standards of human rights,
to prevent, combat and eliminate all acts of terrorism, wherever and
by whomever committed." Fourth, the international community has
been urged to "enhance cooperation at regional and international
levels in the fight against terrorism in accordance with relevant
international instruments, including those relating to human rights,
with the aim of its eradication."
3.5 On the related
question of the "Measures to Eliminate International Terrorism",
the 1994 Declaration affirms, in its paragraph 3, that "Criminal
acts intended or calculated to provoke a state of terror in the general
public, a group of persons or particular persons for political purposes
are in any circumstance unjustifiable, whatever the considerations
of a political, philosophical, ideological, racial, ethnic, religious
or any other nature that may be invoked to justify them." The
Declaration further asserts that States must "refrain from organizing,
instigating, facilitating, financing, encouraging or tolerating terrorist
activities" and calls on them to "ensure that their respective
territories are not used for terrorist installations or training camps,
or for the preparation or organization of terrorist acts intended
to be committed against any other State or their citizens."
3.6 The import
of these resolutions and Declarations is clear. Terrorism can never
be justified, regardless of its supposed motivation; terrorism aims
at the destruction of human rights and civil society; it must therefore
be combated by those who would protect such rights and such society;
States have an obligation to eliminate terrorism and a duty to cooperate
with each other to this end; in taking all necessary and effective
measures to do so, States must act in accordance with international
standards of human rights.
3.7 Since its
establishment in October 1993, this Commission has consistently taken
a position in harmony with this approach. It has stated that the nation,
its police and armed forces have a duty to fight and triumph over
terrorism. It has added that this must be done in a manner that respects
the Constitution of our Republic, the laws of our land and the treaty
commitments into which we have entered, which set out the provisions
of the international law and standards that we must observe.
3.8 When the State
functions within such parameters, there should be no place for the
dichotomy that too often pits human rights proponents against the
security forces. For the combat should not be between them. The combat
is, rather, between civil society, including both human rights proponents
and the security forces on the one hand, the terrorists and their
backers, on the other. When, however, those parameters are breached,
this Commission and all who are concerned with the upholding of human
rights––including the security forces––must act to ensure that the
Rule of Law prevails and that those who breach it are subjected to
the processes of law, for that is what distinguishes a democracy,
living under a Constitution freely adopted, from arbitrary and despotic
forms of government. This is why the Commission opposed the renewal
of the Terrorist and Disruptive Activities (Prevention) Act and why
it insists on transparency and accountability in the handling of allegations
covering human rights violations regardless of who is responsible
for the violations.
3.9 The Commission
believes that, in the circumstances facing the country, much would
be gained by a full, open and continuing dialogue involving policy
makers, human rights proponents and members of the security forces
on these questions. It has been happy to not that both the police
and the various components of the armed forces, including the army
itself, have increasingly been organizing broad-based seminars and
discussions on these subjects, often with the participation or backing
of the Commission. In November 1996, for instance, a seminar on the
Indian Army and Human Rights was inaugurated by the Prime Minister.
In a special session, the Chairperson and Members of the Commission
held a most useful exchange of views with the Chief of Army Staff
and some of the senior-most officers at Army Headquarters and in the
Northern and North-Eastern Commands.
3.10 The Commission
welcomes such occasions as they further transparency and good governance.
The Commission, accordingly, strongly recommends that such a dialogue
between policy makers, the security forces and human rights proponents
be sustained, for it can also contribute greatly to clarity of thought
and action and thus serve the greater interest of strengthening our
free and democratic polity of which, fifty years after Independence,
we have reason in many respects to be justly proud. In so far as any
worthwhile strategy to combat insurgency and terrorism requires strong
citizen support, the Commission further recommends that such dialogue
be undertaken, in particular, in those parts of the country that have
been most afflicted by such developments. The Commission appreciated,
in this connection, the seminar organised by the Assam Human Rights
Commission in February 1997 where such issues were discussed. Earlier,
given the global implications of this subject, the Commission, working
with Bangalore University, had itself organized a seminar on Human
Rights and Terrorism in August 1996, which was addressed by the Prime
Minister and attended, among others, by the Chairman, Vice Chairman
and two Members of the United Nations Committee on Human Rights, set
up under the provisions of the International Covenant on Civil and
Political Rights.
3.11 In recent
months there has been a major intensification of efforts, at the highest
levels of Government, to advance political solutions to the problems
of areas facing insurgency and terrorism. The Commission greatly welcomes
such initiatives. Since insurgencies do not arise over-night, but
are often related to the quality of governance over a period of years
and are the result of long-standing grievances stemming from historical,
economic, social or cultural causes, the Commission is gratified to
see the enhanced efforts being made to address such perceived grievances.
It recommends that such efforts be sustained, as a matter of the highest
priority, for on them depend not only the promotion and protection
of human rights––an end that is important in itself – but the well-being
and integrity of the nation.
3.12 The Commission
has noted that various recommendations made by it in the past, in
respect of the manner in which the security forces should function
when called upon to assist the civilian administration, have received
the consideration of Government and that appropriate instructions
have been issued. It has also noted that, in the past year, no instance
has been brought to its attention alleging the excessive use of force
of the kind and scale that marked the tragic incident in Bijbehara
in 1993. This leads the Commission to the view that the security forces
are making a conscious and serious effort to exercise restraint and
that their constant training and instruction––with an emphasis on
the need to protect human rights––is beginning to have a positive
effect. Nevertheless, the Commission has continued to receive complaints
alleging violations of human rights by the armed forces, particularly
from Jammu&Kashmir and the North-Eastern States. The Commission
will act with utmost care and as best as it can under the terms of
its Statute to ensure that such complaints receive the fullest attention.
At the same time, the Commission cannot but note that, in the past
year, and not least because of the restraint they have been exercising,
the armed forces have themselves been facing a grim toll in lives
lost and personnel injured.
3.13 Thus, according
to data provided by Army Headquarters, during the period 1 January
1988 to 30 April 1997, the Army suffered 1375 killed, and 2237 injured
in the Jammu&Kashmir sector. In the North-Eastern sector, the
Army and the Police lost 459 personnel, with 250 injured during the
period 1 January 1995 to 30 April 1997.
3.14 In response
to the Commission’s recommendations, the Border Security Force and
the Army have both continued to keep the Commission informed, on a
regular basis, of their personnel who, since 1990, have been charged
with violating human rights. The lists provided to the Commission
are periodically up-dated, indicating the details of each incident,
the changes framed, the stage of proceedings, the decisions reached
and the punishments awarded. As of 31 March 1997, 259 cases had been
registered against members of the Border Security Force, including
12 officers. As regards the Army, in 31 cases where investigation
has been completed and charges of human rights violations proved,
81 personnel have been punished, including 29 officers. As in the
past, the details provided to the Commission are available for verification.
3.15 The Commission
is concerned that the procedures to be followed in respect of allegations
of human rights violations be not only credible, but be seen to be
credible. The provisions of Section 19 of the Protection of Human
Rights Act 1993 prescribing the manner in which the Commission is
to proceed in respect of allegations against the armed forces is restrictive
compared to those of Section 17 of the Act which relate to other public
servants. In consequence, Section 19 has been the subject of criticism
ever since the Act was adopted. The Commission, for its part, and
in the light of experience gained over three and half years, is once
again examining in detail the provisions of its Statute with a view
to proposing amendments. In the meantime, it has had occasion to note
and welcome the valuable suggestion made by Army Headquarters, in
the course of discussions with the Commission, that the latter be
represented to observe the proceedings being conducted by the Army
under the provisions of the Army Act, 1950 when it enquires into allegations
of human rights violations by its personnel. The Commission has under
consideration the question of how best, and when, it should do so.
3.16 It is also
appropriate to mention at this stage that the Commission remained
seized of matters arising from the use of the Armed Forces (Special
Powers) Act, 1958 in certain areas of insurgency. Further comments
on the stage of consideration of the Act by the Commission may be
seen in paragraphs 4.2 to 4.5 below.
3.17 The Commission
has continued to receive complaints alleging "false encounters"
involving the police and the security forces. Given the gravity of
such complaints, the Commission has treated them with utmost seriousness.
In its preceding Annual Report, the Commission mentioned that it had
received a complaint from the Andhra Pradesh Civil Liberties Committee
(APCLC) alleging the involvement of the Andhra Pradesh police in a
number of such incidents. The Commission constituted a Special Bench
to go into this matter in detail. The Bench held public hearings in
Hyderabad and recorded evidence. Given the importance of the questions
of law and procedure involved, it also notified the Solicitor General
of India and the Advocate General of the State of Andhra Pradesh.
After hearing arguments at its Headquarters in New Delhi, the Commission
pronounced its final orders on 5 November 1996 and communicated these
to the State Government of Andhra Pradesh immediately thereafter,
which accepted the recommendations of the Commission in full. As the
views and recommendations of the Commission in that case are of far-reaching
consequence, they are set out in detail in Section IX paragraph
9.12(i) of this report. They are also the subject of a letter
dated 29 March 1997 from the Chairperson of the Commission of all
Chief Ministers, in which the latter are requested to issue directions,
through the Directors General of Police to all Police Stations, on
the procedures they should follow in regard to cases where death has
been caused in "encounters" with the police. The Commission
intends to monitor this matter most carefully, and it will, if necessary,
designate specially selected representatives to assist it in this
task. The Commission considers the practice of "fake encounters"
to be unconscionable. It cannot permit the right to private defence,
spelt out in Chapter IV of the Indian Penal Code, to be manipulated
to justify "fake encounters", or the procedures of Section
46(3) of the Code of Criminal Procedure to be subverted to serve such
an end.
3.18 The successive
resolutions of the General Assembly on "Human Rights and Terrorism"
referred to earlier in this report have, as their first operative
paragraph, an expression of solidarity with the victims of terrorism.
For those who are determined to uphold human rights, it would be a
betrayal of their beliefs and responsibilities to ignore, or be complacent
about, the plight of those who have suffered at the hands of terrorists
or had their lives jeopardized by the violence of armed militancy.
The Commission has therefore unhesitatingly intervened on their behalf
in the States which are, or have been, subject to such violence, recommending
enhanced compensation, employment, educational, housing and other
facilities as the situation has warranted.
3.19 The plight
of some 350,000 residents of the valley of Kashmir, comprising some
300,000 Hindus and 50,000 Muslims who had been compelled to leave
their homes and live temporarily in other parts of the country, remains
most poignant. Throughout the year, groups of them continued to interact
with the Commission, seeking its intervention for a variety of purposes.
The Commission, for its part, has interceded on a number of occasions
both with the Central and with the State Government on their behalf,
but longer term solutions to their problems depend on the evolution
of the situation in Jammu&Kashmir where, after a lapse of over
six years, the presence of a democratically elected government gives
fresh hope. Till such time as they can return to their homes, however,
the Commission must continue to be available to them, to hear their
grievances and to be of assistance to the maximum extent possible.
3.20 India is
not alone in the world as an area that has had to endure terrorism
and insurgency. While the particulars of each situation are different,
in each circumstance, certain issues that are similar must be faced
by the State and by those who must uphold human rights. The Government
must ensure good governance, for only then can it ensure the understanding
and support of the citizenry. It must be clear as to the circumstances
in which military aid to civil power will be invoked, and these circumstances
should be widely understood and acceptable. The rights and responsibilities
of security personnel must be clearly defined and not be subject to
policy vacillations or sudden change. But any antiterrorist measures
must be, and be seen to be, directed only against them and not against
innocent civilian populations. Finally, the Rule of Law must be upheld,
and the parameters within which the State must function, as described
earlier in this report, must be strictly respected.
3.21 In the final
analysis, political problems, whether in our country or anywhere else,
must essentially be resolved by political means, and at the core of
any lasting solution lies the need to heal the wounds of the past
and to move forward on the basis of mutual trust and
