Permanent Mission of India

Geneva

Human Rights Council – 29th Session

(June 15-July 03, 2015)

Agenda Item 3: Follow-up Report of the Special Rapporteur on extra-judicial, summary or arbitrary executions – Mission to India

STATEMENT BY INDIA

Thank you Mr. President,

1. We thank the Special Rapporteur Mr. ChristofHeyns for his follow-up report on his visit in March 2012.

2.In his follow-up report, the Special Rapporteur has noted the challenges faced by state authorities in ensuring the protection of right to life.  This is the most basic of human rights and quite understandably gets the highest priority in any Government.  We welcome the Special Rapporteur’s acknowledgement of the maintenance of a high level of protection of human rights in India while facing significant challenges, including armed insurgencies and terrorism.

3.We note with appreciation the follow-up report’s recognition about the measures that have been undertaken by the Government of India to implement the Special Rapporteur’s recommendations pursuant to his Mission to India.  The report acknowledges the steps taken in the recent years on the issue of fake encounters, particularly the recent convictions and the recommendations of life sentence to the concerned security officers for the alleged fake encounters.  The report also appreciates the procedures put in place during investigation of police encounters in cases of death and the requirements stemming from National Human Rights Commission's guidelines on encounter deaths.

4.While acknowledging that there has been substantial reforms at the legislative level, including through judicial interventions by the Supreme Court of India leading to a general drop in unlawful killings, the report maintains that extra-judicial killings nonetheless remain a concern.

Mr. President

5.We are, however, concerned that the Special Rapporteur’s follow-up Report failed to take into account the correct information provided by way of clarification, with respect to the existing legislative framework, including the subsequent measures taken by India during the intervening period to address the recommendations made in his report.

6.The Special Rapporteur came to certain conclusions without substantial verification of the information provided and the steps taken to implement the recommendations made in his report.  Drawing conclusions without citing instances which can be investigated reduces the usefulness of the report and expose it to the charge of being biased.

7.The Special Rapporteur in his country report asserted that the use of force by India’s security forces does not meet international standards.  He does not elaborate on these standards but recommended that section 46 of the Criminal Procedure Code of India should be reviewed to ensure compliance with international human rights law and the principle of proportionality and necessity.  For better appreciation and understanding by the Special Rapporteur, provisions of section 46 of the Criminal Procedures Code of India provides clear procedures required to be followed in making an arrest by the Police Officer or any authorized person, making such arrest.

8.The methods and means to effect arrest, in the first place, need not necessarily be by use of force and the arrested person cannot be subjected to more restraint than is necessary to prevent him from lawful custody.  There are several constitutional guarantees extended to safeguard the rights of persons arrested under the provisions of section 46 that include the right to the grounds of arrest, right to be taken to a magistrate without delay, including the provisions for bail.

9.Therefore, it is not clear to us as to what threshold according to the Special Rapporteur would qualify the proportionality in the use of force.

Mr. President

10.The Special Rapporteur in paragraph 16 continue to express concern on the implementation of AFSPA [Armed Forces (Special Powers) Act] despite clarification provided by India in response to his report.  The AFSPA was enacted to deal with terrorists and insurgents while conducting operations in disturbed areas in discharge of the constitutional duty of the Government in extra-ordinary conditions.  Provisions of AFSPA are assessed and reviewed periodically by the Government of India, by adopting stringent procedures.  Any violation of these procedures are dealt with strictly, swiftly and in a transparent manner.  Indeed India’s vibrant, active and watchful judiciary has played an important role in influencing AFSPA by issuing several guidelines.

11.We only hope that it is not the intention of the Special Rapporteur that during terrorist acts, States should turn a blind eye to civilian casualties.  Governments have to be realistic and effective in fulfilling their responsibility in providing protection to their people.

12.The Special Rapporteur at para 21 while acknowledging National Human Rights Commission’s guidelines on alleged custodial deaths, however, is critical on the implementation mechanisms as mandated under the relevant legislations.  These allegations are not substantiated with cogent details in the report.  In fact the contrary is true, as also acknowledged by the Special Rapporteur, the Supreme Court appointed several commission/s of enquiry to investigate into every specific incident of the alleged custodial deaths.

13.Regarding the Special Rapporteur’s recommendation that India ratify the Convention against Torture and other cruel, inhuman or degrading treatment or punishment.  India is in the process of enacting necessary domestic legislation to fully reflect the convention obligations domestically.  Notwithstanding this, non-ratification of the convention, Mr. President does not mean that there is inadequate protection under Indian laws against torture.  There are several provisions in the Indian Penal Code that deal with the crime of torture and prohibit the infliction of hurt, grievous hurt or bodily harm or injury, especially to extract information in a confession from any person.  The Indian Penal Code also prescribes stringent punishment for offences which may amount to torture, cruel, inhuman, degrading treatment.

14.Provisions of death penalty, as also acknowledged by the Special Rapporteur, are exercised only in the rarest of rare cases, is significantly influenced by the able guidance of India’s vibrant judiciary.  India is fully aware that a real and abiding concerns for the dignity of human life postulates resistance to taking a life through laws’ instrumentality save in the rarest of the rare cases when the alternative options were unquestionably foreclosed.

15.As reiterated earlier, imposition of the death penalty is according to the law of the land and does not violate any international obligations of India.

16.On the issue of violence against women, Mr. President, India is fully cognizant of the enormous challenges involved in addressing this complex issue. We are of the view that effective remedies for women should aim to have a transformative effect by addressing the root causes of violence against them.  A number of laws have been enacted by the Indian Parliament and a number of programmes have been initiated by the Government to bring about perceptible improvement in the status of women and also to protect them from all forms of violence and discrimination.  This include Protection of Women from Domestic Violence Act 2005, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, gender sensitive programmes and budget.

17.The Report while acknowledging the Government’s commitment and efforts to address acts of violence perpetrated against women is, however, critical about the recent amendments brought in the Criminal Law,  in 2013.   In fact, India has recently included this form of penalty as a deterrent for rape for sexual offenders causing injury resulting in death or leaves the victim in a persistent vegetative state.

Mr. President

18.India is committed to resolutely combat any discriminatory practice and prejudice and firmly oppose any attempt to rationalise such practices on the basis of tradition or custom.  Killings in the name of honour, a menace is confined to certain geographical limitations, particularly in the rural areas in India.  These honour killings are dealt with stringent punishment under the provisions of murder in the existing criminal laws.  The Government has also issued advisories to the State Governments, advising inter-alia that specific steps be taken to curb the violations of women’s rights by the so-called honour killings to prevent forced marriages.

19.Mr. President, India embarked upon several legislative measures to remove the legal barriers for the criminal prosecution of a public servant, to eliminate procedural hiccups in case the public servant is accused of serious offences alleged to have been committed under the criminal law during the course of his/her official functions.  The Supreme Court of India through its guidelines held in unequivocal terms that while the holders of public office are entrusted with powers to be exercised in public interest, any deviation from the path of rectitude by any of them amounts to breach of trust and must be severely dealt with.

20.Mr. President, India’s commitment to rule of law, democracy and human rights is as old as our nation itself.  As the world’s largest democracy, with a proud history of unity in diversity, strong constitutional safeguards for fundamental freedoms, a progressive Parliament, an independent and impartial judiciary, a free and vibrant media and a thriving civil society, India is wedded to the idea of just and equitable society.

Thank you Mr. President.

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