Holy cows, chained watchdog and a Banana Republic

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 to give powers to investigate allegations of human rights violations against the armed forces. The government of India cited “compulsions of fighting cross-border terrorism” and “widespread politicisation of human rights issues” for rejecting NHRC’s demand.[1] Under Section 19 of the HRPA, while dealing with complaints of violation of human rights by members of the armed forces, NHRC “may seek a report from the Central Government” and “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”. The NHRC basically serves as the glorified post box and it has been demanding the amendment of Section 19 for the last few years.

According to 2002-03 Annual Report of the Ministry of Home Affairs (MHA) of the Government of India, 14 out of 28 States of India are afflicted by internal armed conflicts.[2] Hundreds of thousands of armed forces consisting of the para-military forces under the control of the government of India and the army have been deployed. 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. Yet, the government of India considers empowering NHRC - a statutory body set up under a Parliamentary Act – will impinge on “fighting cross-border terrorism” and lead to “widespread politicisation of human rights issues”.  The government therefore justifies violations of all forms human rights violations in armed conflict situations.

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 Secretaries in the Ministries of Defence and Home Affairs and to the Chief Secretary of the State Government of Jammu and Kashmir. The Ministry of Home Affairs informed the NHRC that thirty-seven persons had died and seventy-three 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, Mr A.K. Tandon, Director General, Border Security Force informed the Commission 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.” Mr 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.[3]

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.[4]

The Ministry of Home Affairs did not honour this request. In its letter of 5 May 1998, the Ministry of Home Affairs informed the NHRC of 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”.[5] As the MHA refused to comply, 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)”.[6] The writ petition was later withdrawn by the NHRC under mysterious circumstances, reportedly due to legal advice that court verdict would be against NHRC given the restrictions imposed by Section 19 of the HRPA.

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 on 27 March 1996, are yet to be brought to trial. 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”.[7]

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 here. Even the Annual Reports of NHRC are withheld and not submitted to the Parliament, as if the elected representatives of the country would impinge on the socalled “compulsions of fighting cross-border terrorism” and resort to "widespread politicisation of human rights issues”. Not surprisingly, in its 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”.[8]

If the government created statutory bodies such as NHRC are accused of impinging on the “compulsions of fighting cross-border terrorism” and "widespread politicisation of human rights issues”, the question may arise as to how the government of India views the human rights defenders who grumble against the barbaric methods of law enforcement in armed conflict situations. As the NHRC rightly said impunity to the armed forces bring 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”.[9] The impunity to the armed forces and insinuation against the NHRC make India worthy of a banana republic.