III. CIVIL LIBERTIES

NATIONAL HUMAN RIGHTS COMMISSION, ANNUAL REPORT 1997-98

A. HUMAN RIGHTS IN AREAS OF TERRORISM AND INSURGENCY

3.1.1 The views of the Commission on the protection of Human Rights in areas subjected to terrorism and insurgency are a matter of public record, having been dealt with extensively in its earlier reports. As terrorism aims at the destruction of civil society and the unrevealing of the State, it is essential that it be firmly resisted by both. The Commission would therefore like to reiterate its conviction that the police and armed forces of the country, backed by all elements of civil society, have a duty to fight and triumph over terrorism. The Commission is additionally of the view, however, that this must be done in a manner that respects the Constitution of the Republic, the laws of the land and the treaty commitments into which the State has solemnly entered.

3.1.2 The Commission remains convinced, in this connection, that transparency and accountability are essential to the handling of allegations concerning human rights violations, regardless of who is charged with such violations. The Commission is therefore gratified to note an increasing acceptance, in practice, of the recommendations that it has made in regard to matters affecting the armed forces, both in respect of individual complaints and in respect of instances of which it has taken cognizance suo motu.

3.1.3 Pursuant to recommendations of the Commission, both the Army and the Border Security Force (BSF) have been keeping the Commission informed of the facts relating to their personnel who have been charged/punished for violating human rights in Jammu and Kashmir and in the North-Eastern States. The Army has investigated 942 allegations of violations of human rights by its personnel in Jammu&Kashmir and the North-Eastern States during the period 1 January 1990 to 31 March 1998. In 37 cases, which the Army authorities found to be true upon investigation, 109 army personnel of various ranks received punishments ranging from reprimand to dismissal. As in previous years, the Commission received statements from Army Headquarters indicating the date and place of each incident, the name of the accused, the allegation made, the gist of the charges framed, the outcome of the inquiry/trial, and the details of the punishment awarded. As regards the BSF, 259 cases were registered against its personnel, with action being initiated against 141 persons of various ranks; punishments imposed ranged from imprisonment (in respect of 45 persons), to dismissal/compulsory retirement, and other departmental penalties in respect of others (29 persons).

3.2 As in the case of allegations of custodial death or rape involving the police, the Commission is convinced that any such charges against members of the armed forces must be enquired into promptly and effectively. The Commission had additionally recommended in its preceding report that the para-military forces and the army should also report directly to the Commission any instance of death or rape that might occur when a person is in their custody. The Memorandum of Action Taken presented by Government to Parliament, however, essentially recalls the procedures prescribed by the Protection of Human Rights Act 1993 in respect of complaints brought against the armed forces and does not deal with the specific recommendation of the Commission on this matter. In the light of this, the Commission believes that there is need for it to reiterate its recommendation which, it feels, will add to the credibility and transparency of the armed forces in the conduct of their operations and also discourage unwarranted and propagandist charges against them.

3.3 The Commission is of the view that the security forces, when called upon to act in aid of civil power, must do so in close co-ordination with civil administration. This view is based on the experience of the Commission, borne out of its visits of Jammu&Kashmir and certain of the North-Eastern States, that violations of human rights are fare less likely to occur when the role and the responsibilities of the civil authorities under the law are fully respected, not least in respect of cordon and search operations, arrest, interrogation and detention. It is gratifying to note that in Jammu&Kashmir, local magistrates, village elders as well as police officers are increasingly being associated with cordon and search operations and that a Screening-cum-Co-ordination Committee has been set-up in every district under the Deputy Commissioner to address, inter alia, issues relating to the security operations. Similar Committees are also reported to be functioning in the North-Eastern States. The Commission recommends that the proceedings of such Committees be given wider publicity by the State Governments concerned as the dissemination of information relating to such activities can, in itself, have a beneficial impact on the observance of human rights in areas affected by insurgency and terrorism.

3.4 The plight of residents displaced from the valley of Kashmir as a result of terrorism continued to receive the serious attention of the Commission, requiring it to remain in constant touch with the State and Central Governments in regard to their circumstances. The Commission trusts that it will remain the firm endeavour of the Central and State Governments to ensure that these residents of the Valley return to their homes in safety and dignity and regain their social and economic status in the community at the earliest.

3.5 Whether in the valley or elsewhere, the nation needs to do everything that is possible to preserve and protect its treasured plurality and diversity. The message needs to be proclaimed and re-iterated, loud and clear, that the rights of each of its citizens must be respected across the length and breath of the land, regardless of religion, race, caste, sex or place of birth. There should be no place in our country for evils like "pogroms" and "ethnic cleansing". These are practices which are alien to the essential ethos of India which, for millennia, has defined its unity in terms of the incomparable beauty and acceptance of its diversity, and the uniqueness of its cultural heritage in terms of the exquisite richness of the weave of the tapestry of its civilization.

3.6 In the course of the year, the Commission has had occasion to welcome the increasingly clear position being taken by the United Nations on the vexed question of "Human Rights and Terrorism", not least through its resolutions on this subject, and also in its 1994 Declaration on "Measures to Eliminate International Terrorism". Since terrorism can never be justified, least of all as a supposed means of promoting human rights, the Commission has not hesitated to assert, both at the national and at the international level, that the language of human rights should not be manipulated by terrorists or their apologists, nor the forums for debate of such rights be misused for purposes that are incompatible with their proper promotion and protection. The Commission recommends that efforts should continue to be made at all levels to clarify the issue involved in dealing with terrorism. It welcomes the steps being taken to strengthen the international legal regime in this connection and urges that appropriate steps continue to be taken in this respect.