On India’s fourth periodic review on how implements the provisions of the International Covenant on Civil and Political Rights (ICCPR), the United Nations Human Rights Committee while appreciating some measures adopted by the State party also expressed its concern and adopted concluding observations on some serious issues including some provisions of the Armed Forces (Special Powers) Act (AFSPA) concerning Manipur among others.
The Committee adopted concluding observations concerning Manipur among others on the fourth periodic report of India on how India implements the provisions of the ICCPR at the Committee’s 4144th meeting, held on July 22, 2024 in Geneva.
The HRC’s adoption of concluding observations came after considering the fourth periodic report of India at the Committee’s 4134th and 4135th meetings, held on July 15 and 16, 2024 during HRC’s one hundred and forty-first session which started from 1 to 23 July 2024.
In the fourth periodic review meeting which was held after 27 years since the third periodic review in 1997, on how India implements the provisions of the International Covenant on Civil and Political Rights (ICCPR), the United Nations Human Rights Committee grills India on Manipur among others.
While appreciating the measures adopted by the State party to address discrimination, the Committee was concerned about discrimination and violence against minority groups, including religious minorities, such as Muslims, Christians, and Sikhs, “scheduled castes” and “scheduled tribes”, and LGBTI people.
It called upon India to adopt comprehensive legislation prohibiting discrimination, raise awareness among the general public, and provide training to civil servants, law enforcement officers, the judiciary and community leaders to promote respect for diversity, according to a release of the United Nations Human Rights Committee issued on July 25, 2024.
The Committee was concerned that some provisions of the Armed Forces (Special Powers) Acts and counter-terrorism legislation are not in compliance with the Covenant. The Committee also voiced its concern over the application of counter-terrorism legislation for decades in “disturbed areas”, such as districts in Manipur, Jammu and Kashmir and Assam, has led to widespread and grave human rights violations, including excessive use of force leading to unlawful killings, prolonged arbitrary detention, sexual violence, forced displacement and torture.
The Commitee urged India to comply with its obligations under the Covenant and to ensure that counter-terrorism and other security measures in disturbed areas are temporary, proportionate, strictly necessary and subject to judicial review. It also asked India to establish a mechanism to initiate a process to acknowledge responsibility and ascertain the truth regarding human rights violations in disturbed areas.
The Committee is grateful to the State party (India) for having accepted the simplified reporting procedure and for submitting its fourth periodic report in response to the list of issues prior to reporting prepared under that procedure3. It expresses appreciation for the opportunity to renew its constructive dialogue with the State party’s high-level delegation, after its previous review in 1997, on the measures taken during the reporting period to implement the provisions of the Covenant. The Committee thanks the State party for the oral responses provided by the delegation and for the supplementary information provided to it in writing.
However, the Committee expressed its concerns on counter-terrorism and security measures and accountability for serious human rights violations.
The State party reports that certain “disturbed areas” suffer from terrorism and insurgency, leading to an acute “law and order situation” necessitating the involvement of the armed forces, which operate under the Armed Forces (Special Powers) Act, 1958 and the Jammu and Kashmir Armed Forces (Special Powers) Act, 1990.
The Committee notes that while these measures could constitute emergency measures, the State party has not officially declared a public emergency, as provided in Article 4 of the Covenant and General Comment no. 29 on States of Emergency.
The Committee is therefore concerned that provisions of such Acts and related counter-terrorism legislation are not in compliance with the Covenant. The Committee is particularly concerned by the provisions of counter-terrorism legislation regarding the: a) extensive powers to use lethal force; b) preventive detention without charge or judicial review during exceptionally long periods; and c) extensive power granted to executive bodies under broadly and vaguely defined terms, including designating individuals responsible for acts that are “likely to threaten” or “likely to strike terror in people”, which could infringe the presumption of innocence and be misused against dissidents and activists.
As a result of this legislative framework and its application, the Committee remains concerned that the application of counter-terrorism legislation for decades in “disturbed areas” such as districts in Manipur, Jammu and Kashmir and Assam and other territories, has led to widespread and grave human rights violations, including excessive use of force leading to unlawful killings, arbitrary detention without formal charges for years, habeas corpus petitions that are not dealt with expeditiously, sexual violence, forced displacement and torture and ill-treatment (arts. 2, 6, 7, 9, 14 and 26), the release mentioned.
The Committee calls upon India that the State party should review existing counter-terrorism legislation, including the Armed Forces (Special Powers) Act, 1958, the Jammu and Kashmir Armed Forces (Special Powers) Act, 1990, the National Security Act, 1980, the Unlawful Activities (Prevention) Act, 1967, the Jammu and Kashmir Public Safety Act, 1978 and the Chhattisgarh Special Public Security Act, 2005, that does not comply with the Covenant and ensure it fully complies with its obligations under the Covenant, as well as the principles of legal certainty, predictability, necessity and proportionality. The State party should also:
(a) Ensure that counter-terrorism legislation is not invoked or applied to unjustifiably limit any right enshrined in the Covenant, including the rights to life, liberty and security of person, procedural guarantees, such as the presumption of innocence, and freedom of expression and association and to crack down on human rights defenders, journalists, peaceful protesters and political opponents, among others;
(b) Ensure that persons suspected of or charged with terrorist acts or related offences are provided, in law and in practice, with all appropriate legal and procedural safeguards, including against arbitrary detention; that their detention is reviewed in a prompt, thorough and impartial manner by relevant judicial authorities, including through effective habeas corpus; and that anyone arbitrarily detained is released without conditions and adequately compensated;
(c) Ensure that counter-terrorism and other security/counter insurgency related measures in disturbed areas are temporary, proportionate, strictly necessary and subject to judicial review;
(d) Establish a mechanism with guarantees of independence, transparency and genuine investigation power to initiate a process to acknowledge responsibility, ascertain the truth and foster and preserve memory regarding human rights violations in disturbed areas.
The Committee is concerned that the requirement of mandatory prior authorization of the government for the prosecution of the members of the security and armed forces in the context of counter-terrorism and security and military operations creates a climate of widespread impunity regarding allegations of human rights violations. In this regard, the Supreme Court of India in 2016 stated that allegations of extrajudicial killings “must be thoroughly enquired into”; however according to reports, out of the 1,528 documented instances of extrajudicial killings in Manipur from 1979 to 2012, only 39 First Information Reports were registered, of which not all have been scheduled for trial, due among other reasons refusal of sanction for prosecution (arts. 2, 6, 7, 9, 14 and 26), the release mentioned.
The State party should abolish the requirement of mandatory prior authorization of the government for the prosecution of members of the security and armed forces, investigate promptly, thoroughly and impartially all human rights violations in the context of counter-terrorism, security and military operations, ensure that perpetrators are prosecuted and if convicted punished with penalties commensurate with the gravity of the offence, and that victims have access to effective remedies.
Further, the Committee expressed its concern on freedom of conscience and religious belief, non-discrimination, and prohibition of advocacy of national, racial or religious hatred in India.
The Committee is concerned about the very high levels of violence against religious minorities, such as the incidents in Manipur since May 2023, and the riots in Gujarat in 2002, and the resulting lack of accountability for human rights violations, including extrajudicial killings.
Senior Editor: Imphal Review of Arts and Politics
