Hundred and nine civilian deaths occurred due to police firing in 2011, according to National Crime Records Bureau (NCRB). Disproportionate use of force during demonstrations caused many deaths and at least 100 deaths were caused due to excessive use of force against demonstrators in Jammu and Kashmir in 2010. According to the NHRC, 2,560 deaths during encounters with police were reported between 1993 and 2008. Of this, 1,224 cases were regarded by the NHRC as “fake encounters”. The police, the central armed police forces and the armed forces have been accused of “fake encounters”. Complaints have been lodged, particularly against the Central Reserve Police Force, the Border Security Forces, and the armed forces acting under the Armed Forces (Special Powers) Act (AFSPA).
In the face of such alarming statistics, the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Christof Heyns, was invited to the country and he toured extensively between March 19 to 30 this year meeting several State and non-State actors. The main findings of his report will be presented to the UN Human Rights Council (UNHRC) in Geneva in June 2013.
It recommends a series of legal reforms and policy measures aimed at fighting impunity and decreasing the level of unlawful killings in India.
While deaths resulting from excessive use of force by security officers, and legislation that is permissive of such use of force hampers accountability, impunity is a central problem and represents a major challenge, according to the report.
His report states that India should repeal, or at least radically amend, AFSPA and the Jammu and Kashmir AFSPA, with the aim of ensuring that the legislation regarding the use of force by the armed forces provides for the respect of the principles of proportionality and necessity in all instances, as stipulated under international human rights law. It should also remove all legal barriers for the criminal prosecution of members of the armed forces.
“While waiting for the necessary amendment or repeal of AFSPA, it should be ensured that the status of a “disturbed area” under AFSPA is subject to regular review – for example, every six months – and a justified decision is made on its further extension,” states the report.
The report also recommends the immediate ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol and the International Convention for the Protection of All Persons from Enforced Disappearance.
It recommends India to swiftly enact the Prevention of Torture Bill and ensure its compliance with CAT.
All vigilante groups and civilians recruited to perform military or law enforcement tasks, and who are not part of the regular security forces, should be dissolved and prohibited with immediate effect, states the report.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act should be reviewed with the aim of extending its scope to Dalit Muslims and Dalit Christians. The criminal legislation should be reviewed to ensure that all gender-based killings, as well as killings of any member of a tribe or lower caste receive high sentences, possibly under the form of life imprisonment. The Indian legislation regarding the imposition of the death penalty should be reviewed to provide that the death penalty may be imposed for the most serious crimes only, namely only for those crimes that involve intentional killing. India should consider placing a moratorium on the death penalty in accordance with General Assembly resolutions with a view to abolishing it, according to the report. A mechanism should be put in place to regularly review and monitor the status of implementation of the directives of the Supreme Court and the NHRC guidelines on arrest, encounter killings, and custodial violence and death.
The establishment and effective functioning of the independent Police Complaints Authorities should be made a priority in all states. It should be ensured that FIR registration is prompt and made mandatory in all cases of unlawful killings and death threats. The authorities should put in place an independent mechanism to monitor FIR registration following any request to do so, as well as of punishment of those law enforcement officials who refuse to register a FIR.
To a large extent, the required structures to decrease extrajudicial executions are already in place but a concerted and systematic effort is required by the State, civil society and others to eradicate unlawful killings, states the report.