18. The Committee remains concerned at the continuing reliance on special powers under legislation such as the Armed Forces Special Powers Act, the Public Safety Act and the National Security Act in areas declared to be disturbed and at serious human rights violations, in particular with respect to Article 6, 7, 9 and 14 of the Covenant, committed by security and armed forces acting under these laws as well as by paramilitary and insurgent groups. The Committee, noting that the examination of the constitutionality of the Armed Forces (Special Powers) Act, long pending before the Supreme Court is due to be heard in August 1997, hopes that its provisions will also be examined for their compatibility with the Covenant.
In this respect, bearing in mind the provisions of Article 1, 19 and 25 of the Covenant, the Committee endorses the views of the National Human Rights Commission to the effect that the problems in areas affected by terrorism and armed insurgency are essentially political in character and that the approach to resolving such problems must also, essentially, be political, and emphasizes that terrorism should be fought with means that are compatible with the Covenant.
19. The Committee regrets that some parts of India remains subject to declaration as disturbed areas over many years–for example the Armed Forces (Special Powers) Act has been applied throughout Manipur since 1980 and in some areas of that state for much longer–and that in these areas, the State party is in effect using emergency powers without resorting to Article 4, paragraph 3, of the Covenant.
The Committee recommends that the application of these emergency powers be closed monitored so as to ensure its strict compliance with the provisions of the Covenant.
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21. The Committee notes with concern that criminal prosecution or civil proceedings against members of the security and armed forces, acting under special powers, may not be commenced without the sanction of the Central Government. This contributes to a climate of impunity and deprives people of remedies to which they may be entitled in accordance with Article 2, paragraph 3, of the Covenant.
The Committee recommends that the requirement of governmental sanction for civil proceedings be abolished and that it be left to the courts to decide weather proceedings are vexatious or abusive. It urges that judicial inquiries be mandatory in all cases of death at the hands of the security and armed forces and that the judges in such inquiries, including those under the Commissions of Enquiry Act of 1952, be empowered to direct prosecution of security and armed forces personnel.
22. The Committee regrets that the National Human Rights Commission is prevented by Clause 19 of the Protection of Human Rights Act from investigating directly complaints of human rights violations against the armed forces, but must request a report from the Central Government. The Committee further regrets that complaints to the Commission are subject to one-year time-limit, thus preventing the investigation of many alleged past human rights violations.
The Committee recommends that these restrictions be removed, and that the National Human Rights Commission be authorized to investigate all allegations of violations by agents of the State. It further recommends that all states within the Union be encouraged to establish Human Rights Commission.
23. The Committee expresses concern at allegations that police and other security forces do not always respect the rule of law and that, in particular, court orders for habeas corpus are not always complied with, particularly in disturbed areas. It also expresses concern about the incidence of custodial death, rape and torture, and at the failure of the Indian Government to receive the United Nations Special Rapporteur on Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.
While the Committee welcomes the requirement by the National Human Rights Commission that all such alleged incidents be reported and investigated, and that all post mortem examinations be taped, it recommends:
a. the early enactment of legislation for mandatory judicial inquiry into cases of disappearance and death, ill-treatment or rape in police custody;
b. the adoption of special measures to prevent the occurrence of rape of women in custody;
c. the mandatory notification of relatives of detainees without delay;
d. the guarantee of the right of detainees to legal advice and assistance and to have a medical examination;
e. and that priority be given to providing training and education in the field of human rights to law enforcement officers, custodial officers, members of the security and armed forces, as well as judges and lawyers, and that the United Nations Code of Conduct for Law Enforcement Officers be taken into account in this regard.
24. The Committee regrets that the use of special powers of detention remains widespread. While noting the State party’s reservation to Article 9 of the Covenant, the Committee considers that this reservation does not exclude, inter alia, the obligation to comply with the requirement to inform promptly the person concerned of the reasons for his or her arrest. The Committee is also of the view that preventive detention is a restriction on liberty imposed as a response to the conduct of the individual concerned, that the decision as to continued detention must be considered as a determination falling within the meaning of Article 14, paragraph 1, of the Covenant, and that proceedings to decide the continuation of detention must, therefore, comply with that provision.
The Committee recommends that the requirements of Article 9, paragraph 2, of the Covenant be complied with in respect of all detainees. The question of continued detention should be determined by an independent and impartial tribunal constituted and operating in accordance with Article 14, paragraph 1, of the Covenant. It further recommends, at the very least, that a central register of detainees under preventive laws be maintained and that the State party accept the admission of the International Committee of the Red Cross and the Red Crescent to all types of detention facilities, particularly in areas of conflict.
Footnote: This appendix consists of extracts from the 1997 Concluding Observations of the UN Human Rights Committee on the periodic report of India in compliance with the International Covenant on Civil and Political Rights, to which it is a party (CCPR/C/79/Add.81, 4 August 1997). India has failed to submit subsequent reports to the committee as required under the covenant.
