Jul 12, 2016 | News
The Indian Supreme Court’s recent decision reiterating the importance of accountability for human rights violations by police and security forces, in particular where unnecessary or excessive force is alleged to have been used, is a welcome step and must be immediately implemented.
In the case of EEVFAM v Union of India, petitioners alleged that 1,528 killings by the police and security forces in the Indian state of Manipur had amounted to unlawful extrajudicial executions. Manipur is the site of a long-running armed insurgency.
In 2013, a court-appointed commission – the Santosh Hegde Commission – conducted an inquiry into six of the cases mentioned in the petition, and found all the six killings to be unlawful.
“This judgment is a strong signal from the Court that human rights violations by security forces will not be tolerated in the name of national security or anti-terror policies,” said Sam Zarifi, the International Commission of Jurists (ICJ) Asia Director.
“It’s crucial for the government now to follow through on this ruling to bring the families of the victims of these and other extra judicial executions mentioned in this petition closer to truth, justice and accountability”.
The killings mentioned in the petition all took place in areas considered “disturbed” under the Armed Forces Special Powers Act (AFSPA). Once an area is declared “disturbed” under the AFSPA, armed forces are given a range of “special powers”, which include the power to arrest without warrant, to enter and search any premises, and in certain circumstances, use force, to cause death.
Under the AFSPA, governmental permission, or sanction, is required before any member of the armed forces can be prosecuted for crimes in a civilian court, thus effectively shielding armed forces from accountability for human rights violations.
“These, and other allegations, of human rights violations under the AFSPA only reiterate the urgent need to repeal this draconian and undemocratic law,” Zarifi said. “The allegations in this case are evidence of the culture of impunity that the AFSPA has perpetuated”.
In the present judgment, the Supreme Court made some welcome observations:
- It emphasized the need for accountability for human rights violations by security forces, reiterating the principles laid down in previous landmark cases. It said “every death caused by the armed forces, including in the disturbed area of Manipur should be thoroughly enquired into if there is a complaint or allegation of abuse or misuse of power”.
- It dismissed the government’s argument that legal safeguards would not fully apply to anyone considered an “enemy” under Indian law. The Court held that at least all Indian citizens were equally entitled to the enjoyment of the fundamental rights in the Constitution, stating “If members of our armed forces are deployed and employed to kill citizens of our country on the mere allegation or suspicion that they are ‘enemy’, not only the rule of law but our democracy would be in grave danger”.
- It noted that it did not have sufficient information about each of the 1,528 cases mentioned in the petition. It has directed parties to present detailed information about the status of each case.
“This judgment references India’s obligations under international human rights law, which requires the government to respect and protect the right to life and ensure access to effective remedies,” Zarifi said. “Accountability for all human rights violations is a key aspect of these rights”.
The ICJ called for independent, impartial and thorough investigations into all the cases mentioned in the petition, in line with international standards.
It said that persons responsible should be brought to justice in fair trials in civilian courts, and the family of victims should be accorded an effective remedy and reparation for any violations.
The ICJ will continue to follow the case, which will continue in four weeks. Several key issues remain to be addressed, which the court will look at in subsequent hearings.
First, how should the specific cases be investigated? The petitioners have asked for the constitution of a Special Investigation Team, comprising police officers from outside the state of Manipur, to investigate the allegations, to ensure that the enquiry is fair, independent and thorough.
Second, in what forum should trials take place? The Indian Army Act allows for army personnel on active duty to be tried by a court martial (military court) instead of a civilian court for all offences, including gross human rights violations.
International standards call for military personnel accused of gross human rights violations to be put on trial before a civilian court. The Court has left this question open for the allegations in the present petition, stating: “The law is therefore very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court”.
Third, the Court will also consider the efficacy of the National Human Rights Commission; in particular whether its guidelines are binding or only advisory. Under Indian law, the NHRC has limited jurisdiction where human rights violations by the armed forces are concerned.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e:sam.zarifi(a)icj.org
Mar 31, 2016 | News
A Delhi Court acquitted human rights defender Irom Sharmila of an “attempt to commit suicide” charge. The government of Manipur must in turn immediately drop the charges against her, said the ICJ today.
Irom Sharmila, was charged under section 309 the Indian Penal Code.
She has been on a continuous hunger strike for over 15 years, demanding repeal of the Armed Forces Special Powers Act (AFSPA).
“This order is a welcome recognition that Irom Sharmila’s hunger strike is a form of peaceful dissent and protest protected by the right to freedom of expression,” said Sam Zarifi, ICJ’s Asia Director.
This week, Iron Sharmila was acquitted of the charges against her in Delhi. The case against her in Manipur is, however, still on-going.
The decision of the Delhi court is not binding on the courts in Manipur, but the charges are analogous, and similar reasoning should prevail, the ICJ says.
“The government of Manipur should drop the other charges under section 309 against her, and release her immediately and unconditionally,” said Zarifi.
On at least two occasions previously, courts in Manipur have directed that Irom Sharmila be released, saying that charges under section 309 were not applicable.
“The use of section 309 against Sharmila highlights the outdated and absurd nature of this law,” Zarifi said.
“The government should expedite the repeal of 309 and, instead of criminalizing Irom Sharmila’s protest, focus on the reason behind it and repeal the AFSPA,” he added.
The AFSPA gives armed forces a range of “special powers” in “disturbed areas”, which include the power to arrest without warrant, to enter and search any premises, and in certain circumstances, “fire upon or otherwise use force, even to the causing of death”.
Furthermore, under the AFSPA, governmental permission, or sanction, is required before any member of the armed forces can be prosecuted for crimes in a civilian court.
These provisions are inconsistent with a range of human rights, including the right to life and right to remedy.
They have also facilitated torture, rape and enforced disappearances in areas where operational, the ICJ notes.
“This law is inconsistent with India’s human rights obligations, and has led to human rights violations, wide-spread impunity, and immense grief and suffering in the areas where it operates”, Zarifi said.
“It is high time that it was taken off the books”.
Background
Irom Sharmila began a hunger strike in November 2000, calling for the repeal of the AFSPA, following the unlawful killing of 10 civilians by security forces purportedly acting under it in Malom.
She was arrested by the Manipur government in 2000 under section 309 of the Indian Penal Code, which prohibits an “attempt to commit suicide”.
Irom Sharmila has been in custody almost continuously since her initial arrest, and has continued her hunger strike.
She is fed through a nasal tube at the Jawaharlal Nehru hospital in Imphal where she is usually held.
The Delhi government also charged her on similar grounds with respect to an incident from 2006, when she held a protest in their jurisdiction.
In 2014, a Manipur court quashed charges under section 309 against Irom Sharmila, saying “The agitation of Irom Chanu Sharmila is a political demand through lawful means of repealing a valid statute. … she may continue with the fast till her demand is met politically by the Government”.
However, since she continued her hunger strike, she was immediately re-arrested on the same grounds.
In its 210th report, the Indian Law Commission has recommended that section 309 be repealed. In 2011, the Supreme Court said: “the time has come when [section 309] should be deleted by Parliament as it has become anachronistic.”
In 2014, the government announced that it was in the process of repealing 309.
The AFSPA applies to “disturbed areas” in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura.
An almost identical law is also applicable in Jammu and Kashmir.
Feb 3, 2016 | News
Yesterday’s decision of the Indian Supreme Court to refer to a larger bench of the same Court the petition challenging Section 377 of the Indian Penal Code (IPC), offers the opportunity to undo the appalling 2013 judgment of a two-judge bench of the SC in the Suresh Koushal case, says the ICJ.
“This order of the Supreme Court is a crucial opportunity to undo the injustice of the Suresh Koushal decision,” said Sam Zarifi, ICJ’s Asia Director. “It is an important test of the Supreme Court’s commitment to equality and ending discrimination against people on the basis of sexual orientation or gender identity.”
After the December 2013 Suresh Koushal decision – when the Supreme Court upheld the constitutionality of section 377 and reversed the Delhi High Court’s courageous and much celebrated decision – the petitioners filed a review petition, which was dismissed.
The petitioners then filed “curative petitions” in 2014, stating that the Supreme Court’s judgment of December 2013 violated principles of natural justice for several reasons. A “curative petition” allows the Supreme Court to re-assess its previous decisions on limited grounds, even after appeals and reviews have concluded.
Yesterday the Supreme Court referred the curative petition, and the major constitutional questions it raised, to a five-judge bench of the same Court, thus acknowledging doubts about the correctness of its 2013 ruling. A five-judge bench will now be set up to hear this challenge.
“The referral highlights the Supreme Court’s recognition of the need for a judicial response to the ongoing discrimination against people on the basis of sexual orientation and gender identity,” Zarifi said.
“After 16 years within the court process, this issue clearly could not be resolved with the highly problematic Suresh Koushal decision, which ignored the reality of consensual same sex behavior in India and the fact that Section 377 criminalizes people for who they are and leads directly to serious human rights violations.”
By criminalizing consensual same-sex adult sexual conduct, Section 377 is inconsistent with India’s obligations under international human rights law, including in respect of the rights to sexual autonomy, equality, non-discrimination, privacy, dignity, free expression, and life.
Many of these rights are guaranteed in India’s Constitution.
India is also a party to several international instruments, which require that these rights be respected, protected and fulfilled.
The Yogyakarta Principles – which apply international human rights law to issues of sexual orientation and gender identity – clarify that the rights to equality, non-discrimination and privacy require states to “repeal all laws that criminalize consensual sexual activity among persons of the same sex who are over the age of consent.”
The Supreme Court referred to these principles in the 2014 National Legal Services Authority v Union of India (NALSA) case where it also acknowledged that Section 377 was “used as an instrument of harassment and physical abuse against Hijras and transgender persons”.
“Yesterday’s decision offers hope that the Supreme Court intends to reaffirm the principle that people in India cannot be subjected to discrimination, harassment and violence, simply on the basis of their sexual orientation or gender identity,” Zarifi said.
Background
Section 377 makes it an offence to “voluntarily ha[ve] carnal intercourse against the order of nature with any man, woman or animal” and has been used to persecute people for their real or purported engagement in consensual same-sex sexual conduct. The penalty can extend to life imprisonment.
Several reports document how Section 377 has been a tool for discrimination, blackmail, extortion, and violence by state and non-state actors against the LGBTI community.
It has adversely affected HIV/AIDS prevention efforts, and has also reinforced harmful social stereotypes and taboos against sexual minorities.
The petitioners in the original challenge against section 377 have waged this legal battle for over a decade. The constitutional challenge against Section 377 was filed in 2001.
In 2009, in Naz Foundation v. Government of NCT of Delhi and Others, the Delhi High Court held that Section 377 denied “a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality”.
It went on to find that this criminalization of identity denied “a gay person a right to full personhood which is implicit” in the notion of life under Article 21 of the Indian Constitution, and also violated the constitutional right to equality and non-discrimination. The High Court held that Section 377 was unconstitutional insofar as it criminalized consensual same-sex sexual conduct.
However, its judgment was appealed to the Supreme Court.
On appeal, in 2013 the Supreme Court reversed the decision of the Delhi High Court, holding the section to be constitutional.
The Supreme Court also affirmed that legislature would “be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General”.
Dec 3, 2015 | News
The Indian government should support a comprehensive law guaranteeing equal rights and non-discrimination to transgender persons, consistent with India’s international human rights obligations, the ICJ said today.
This law must be developed and passed after adequate consultation with the transgender community in India, the Geneva-based organization added.
“The transgender community in India has faced stigma, discrimination and violence for years,” said Sam Zarifi, ICJ’s Asia-Pacific Director. “It is time for the Indian Parliament to pass comprehensive anti-discrimination legislation as an essential first step towards guaranteeing the transgender community’s internationally recognized, and constitutionally protected, human rights.”
Earlier this year, the Rajya Sabha (Upper House of the Indian Parliament) passed the Rights of Transgender Persons Bill, 2014, a private member’s Bill, that is, a bill introduced by a Member of Parliament rather than the Government.
The Bill guaranteed a wide range of rights to transgender individuals, including the right to be free from discrimination, the right to life and personal liberty, the right to protection from abuse, violence and exploitation, as well as equality in educational opportunities, employment, social security, and health care.
The Lok Sabha (Lower house of the Indian Parliament) will discuss a revised version of this Bill in the current session. The Government’s Ministry of Social Justice and Empowerment is reportedly developing its own draft.
“Any transgender rights legislation must fully comply with India’s international human rights obligations,” Zarifi added. “An essential element of this is that the Indian government must ensure that the transgender community participates in, and is meaningfully consulted on, the new law’s provisions.”
India has ratified several international instruments, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of all forms of Discrimination against Women. They prohibit discrimination and guarantee full equality for everyone, including transgender people.
Successive pronouncements by international bodies, including the UN, have affirmed that these rights apply to transgender persons.
The Yogyakarta Principles – which reflect the specific application of international human rights law in the context of sexual orientation and gender identity – recognize transgender people’s human rights, including the right to equality before the law, equal protection of the law and the principle of non-discrimination, as well as the right to self-defined sexual orientation and gender identity, the right to expression, to privacy, to health, to housing, to education, and the right to participate in policies affecting one’s welfare.
India’s transgender rights Bill should respect, protect and fulfill this range of rights. It should also ensure that the definition of who constitutes a transgender person, as well as the process of determining this, is consistent with international standards, the ICJ said.
In 2014, in the case of National Legal Services Authority v Union of India (NALSA), the Indian Supreme Court recognized transgender persons’ right to self-identification and to the legal recognition of their gender identity. However, a year after the Supreme Court’s judgment, its directions are yet to be effectively implemented, making the passage of a comprehensive bill on transgender persons’ human rights all the more crucial. At the same time, the legislative process culminating in the adoption of the legislation needs to be adequately consultative.
“A comprehensive transgender rights bill is long overdue in India,” Zarifi said. “It is crucial that the Indian government take advantage of the current political momentum to reaffirm the rights of transgender persons, and pass a strong and progressive law.”
Contact:
Sanhita Ambast, ICJ International Legal Adviser (Delhi), t: +91 9810962193; e: Sanhita.ambast(a)icj.org
Background
A report by India’s Ministry of Social Justice and Empowerment – Report of the Expert Committee on the Issues relating to Transgender Persons –has acknowledged the range and impact of discrimination faced by the transgender community in India.
It makes note of the stigma, discrimination and violence they face from their families, communities, and state institutions, including the police. It also highlights the difficulties faced by them in accessing services like housing and education.
In the NALSA case, the Supreme Court found that discrimination faced by the transgender community in India violated the rights to equality, non-discrimination, free speech and expression, and life in the Indian constitution. The Court gave specific directions to address this discrimination.
It also noted that the absence of “suitable legislation protecting the rights of the members of the transgender community” has resulted in their facing discrimination in various areas. A clarification petition, filed by the government, regarding this case is currently pending at the Supreme Court.
Following the Supreme Court’s 2013 NALSA judgment, several states have put in place progressive policies to address the discrimination faced by transgender groups.
However, the implementation of this judgment is far from adequate, and a lot more needs to be done.
A 2011 Report of the United Nations High Commissioner for Human Rights has recommended that states “Enact comprehensive anti-discrimination legislation that includes discrimination on grounds of sexual orientation and gender identity among prohibited grounds and recognizes intersecting forms of discrimination”.
It also asked states to “Facilitate legal recognition of the preferred gender of transgender persons”.
In its 2015 report, the United Nations High Commissioner for Human Rights recommended that anti-discrimination legislation should “include[s] sexual orientation and gender identity among prohibited grounds, and also protect[s] intersex persons from discrimination” and that “LGBT and intersex persons and organizations [should be] consulted with regard to legislation and policies that have an impact on their rights”.
Nov 5, 2015 | News
On the 15th anniversary of Irom Sharmila’s hunger strike, the International Commission of Jurists calls on the Indian government to repeal the Armed Forces Special Powers Act without further delay.
Irom Sharmila began a hunger strike in November 2000, calling for the repeal of the AFSPA, following the unlawful killing of 10 civilians by security forces purportedly acting under it in Malom.
“The AFSPA has facilitated gross human rights violations by the armed forces in the areas in which it is operational,” Sam Zarifi, Asia-Pacific Director of the ICJ said. “It is a repressive and draconian law that should have no place in today’s India”.
Once an area is declared “disturbed” under the AFSPA, armed forces are given a range of “special powers”. These include the power to arrest without warrant, to enter and search any premises, and in certain circumstances, “fire upon or otherwise use force, even to the causing of death”. These and other vaguely framed provisions give armed forces broad powers that are inconsistent with the government’s obligations to respect the right to life.
In addition to leading to many unlawful killings in the areas in which it has been in effect, the provisions of the AFSPA have also facilitated torture, rape and enforced disappearances.
“The AFSPA has created a culture of impunity, shielding security forces from accountability in India for crimes under international law, and making it impossible for victims of human rights violations to access justice”, Sam Zarifi said.
Under the AFSPA, governmental permission, or sanction, is required before any member of the armed forces can be prosecuted for crimes in a civilian court. Decisions regarding sanction take many years, and as yet, no member of the armed forces has been prosecuted in a civilian court.
The Indian government has often justified the need for the AFSPA as necessary to address terrorism and militancy in “disturbed areas”. “International law requires and experience shows that effective counter- terrorism measures must reinforce human rights, and not undermine and violate them,” said Sam Zarifi.
Calls for the repeal or amendment of the AFSPA –including from official bodies – have come from near and far for a number of years.
Several UN human rights bodies have recommended that the AFSPA be repealed or significantly amended. These include the Committee on the Elimination of Discrimination against Women (2014), the Special Rapporteur on violence against women (2014), the Special Rapporteur on extrajudicial, summary or arbitrary executions (in 2013 and again in 2015), the Special Rapporteur on the situation of human rights defenders (2012), the Committee on the Elimination of Racial Discrimination (2007), and the UN Human Rights Committee (1997).
In recent years, prominent Indian bodies have recognized the brutality of the AFSPA and echoed demands for repeal or amendment. The Justice Jeevan Reddy Committee set up by the Government of India to review the working of the AFSPA, has advocated its repeal. The Fifth Report of the Second Administrative Reforms Commission seconded this recommendation.
The Verma Commission, set up by the government following the gang rape in Delhi in 2012, called for the repeal of sanction provisions under the AFSPA as they relate to sexual offences. In 2015, a High Level Committee on the Status of Women also reportedly advocated its repeal.
In 2012, the Extra Judicial Execution Victims Family Association, Manipur (EEVFAM) filed a petition at the Supreme Court of India, alleging that between 1979 and 2012, 1528 people were extra-judicially executed by security forces in Manipur.
A court-appointed fact-finding commission – popularly known as the Santosh Hegde Commission – studied 6 of these cases, and found that the deaths were not lawful.
In its report, the Hegde Commission agreed with the observation of the Jeevan Reddy Commission, that the AFSPA had become “a symbol of oppression, an object of hate, and an instrument of discrimination and high-handedness.”
The case is still pending in the Supreme Court.
Contact:
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; email: sam.zarifi(a)icj.org
Sanhita Ambast, ICJ International Legal Advisor (Delhi), t: +91 9810962193; email: Sanhita.ambast(a)icj.org
