Skip to main content

Home Ministry refuses to disclose procedure on using human shields


By Venkatesh Nayak*
The Union Ministry of Home Affairs (MHA) has rejected my information request for details of the Standard Operating Procedure (SOPs) intended for use, by security forces, in areas where militant groups are active and use civilians as ‘human shields’. While the Central Public Information Officer (CPIO) did not bother to send any reply, the First Appellate Authority (FAA) of the MHA has rejected my first appeal invoking security and strategic interests of the State as grounds for refusing disclosure.

Background

Readers may remember the video of a youth tied to a pilot vehicle being driven around by security forces engaged in counter-insurgency operations in Budgam, Jammu and Kashmir (J&K). This incident occurred in the poll-bound Lok Sabha constituency of Srinagar. This video went viral in April, 2017 and soon after the Indian Army reportedly ordered a Court of Inquiry into the incident. The findings of the Court of Inquiry are yet to be made public. A few weeks later, the officer responsible for this incident received a commendation for his performance in counter-insurgency operations, from the Chief of the Indian Army.
After this video went viral, opinion was divided about the legitimacy of the action of security forces using a civilian as a ‘human shield’. While those supportive of this action argued that it saved the lives of security forces who frequently faced stone-pelting mobs, since July, 2016, others, more critical of the action, roundly condemned it as yet another instance of highhandedness of the armed forces. In July, acting on the plaint of the victim, the J&K State Human Rights Commission directed the Government to pay Rs. 10 lakhs as compensation, unequivocally describing what several others called a “life-saving strategy”, “humiliation, physical and psychological torture and wrongful confinement” of the victim which the law does not permit even for a convict (person found guilty of any crime by a competent court). More recently, the media has reported on the unwillingness of some unnamed officers of the security forces to follow such coercive measures. Instead they have expressed the desire to build better relations with local residents in conflict-affected areas.

GOI apparently has SOPs on the use of ‘human shields’

It is not as if the Government had no policy on the issue of ‘human shields’ in militancy-affected areas. Almost four years before the Budgam incident occurred, an MP had raised a query about the alleged “use of civilians as shields” by left wing militant groups in other parts of India. In May 2013, Mr. P. Kumar, AIADMK MP from Trichy constituency in Tamil Nadu raised the following queries in the Lok Sabha:
“a) whether there are reports that innocent civilians have been killed during anti-naxal operations;
b) if so, the details of such cases reported during the last three-years and current year, State-wise;
c) whether it is true that many villagers in this country have complained that the naxals were using them as human shields; and
d) if so, the details thereof and the reaction of the Government thereto?”
The then Union Minister of State for Home Affairs provided some statistics in response to these queries. He also made an important revelation about the existence of a draft SOP on ‘Maoists using villagers as human shields’ which was circulated for comments, to the armed forces and States affected by left wing militancy.

The RTI Intervention for SOPs on ‘human shields’

Stumbling upon this parliamentary query and reply, less than two weeks after the J&K video surfaced, I submitted a request under the Right to Information Act, 2005 (RTI Act) to the MHA seeking the following information:
“Apropos of the web printout of the reply to the Unstarred Question #6497 presented in the 15th Lok Sabha on 07/05/2013 annexed to this RTI application, I would like to obtain the following information from your public authority:
a) A clear photocopy of the instructions issued to all State Governments/CAPFs to adhere to the highest standards of human rights during anti-LWE operations, mentioned in the last para of the reply to paras #(c) and (d) of the said Unstarred Question;
b) A clear photocopy of the Standard Operating Procedure (SOP) on ‘Maoists using villagers as human shields’ circulated to the Governments of LWE affected States and the CAPFs for consideration and comments;
c) A clear photocopy of all comments received till date in relation to the SOP mentioned in para #(b) of this RTI application;
d) A clear photocopy of the latest version of the SOP relating to the use of civilians as human shields issued by the Central Government, if any; and
e) A clear photocopy of the latest version of the SOP relating to the use of civilians as human shields by militant groups issued by the Central Government in the States of Arunachal Pradesh, Manipur, Nagaland, Meghalaya and Jammu and Kashmir.”
The CPIO, MHA did not bother to send any reply. After waiting for almost two months, I submitted a first appeal to the FAA of the MHA demanding disclosure of all the requested information, free of charge. The FAA has rejected the appeal summarily stating:
“I have examined your first appeal and found that the information/documents, sought in your RTI application dated 19.04.2017, are secret in nature and disclosure of such documents would prejudicially affect the security and strategic interests of the State. Therefore the desired information/documents cannot be provided as per Section 8(1)(a) of the RTI Act, 2005.”
So it is clear that an SOP to guide security forces for handling situations where militant groups use ‘human shields’, exists. The MHA does not want to disclose it. I will submit a second appeal to the Central Information Commission, shortly.

SOPs relating to ‘human shields’ must be made public

To the best of my knowledge there has hardly been any discussion in the public domain about the Government’s own policy of dealing with ‘human shields’. The following para from the 2013 reply of the Union Home Minister must be taken note of:
“The Central Armed Police Forces (CAPFs) have sensitised their field formations to take utmost care to avoid casualties/injuries and any form of harassment of locals while undertaking anti-naxal operations even when they are used as human shields by the Maoists…. The Government of India has issued instructions to all State Governments/CAPFs to adhere to the highest standards of human rights during anti-LWE operations and to strictly deal with aberrations…”
This policy clearly applies to States affected by left-wing militancy. It is not clear whether similar instructions and the related SOPs apply to security personnel deployed in J&K as well. If the Government’s policy is to adhere to the strictest standards of human rights despite any provocation and avoid any form of harassment of locals even when they are used as “human shields” in other States, how can the use of a civilian in J&K as a ‘human shield’ by security forces themselves be reconciled with this policy?
Or is this policy of strict adherence to human rights standards by security forces not applicable to J&K due to its special constitutional status (under Article 370)? Or has the National Democratic Alliance changed Government policy vis-a-vis ‘human shields’ instituted under the previous United Progressive Alliance regime?
If SOPs regarding the use of ‘human shields’ are placed in the public domain, victims will be able to demand accountability from the State when the SOPs are transgressed. Transparency will also facilitate a fuller- debate on the use of ‘human shields’ by any agency, be it State forces or non-State actors. It can be a big confidence building measure in areas like J&K.

Are there “Do’s and Don’ts” for security forces operating in ‘disturbed areas’ in J&K

In fact, during a recent visit to J&K, I discovered that there was very little knowledge about the “Do’s and Donts” issued by the Indian Army for its personnel operating in areas covered by the Armed Forces (Special Powers) Act, 1958. These guidelines received the Supreme Court’s approval when it decided the matter of Naga People’s Movement for Human Rights vs Union of India. (NPMHR) A 3-Judge Bench of the Apex Court upheld the constitutionality of this law applied to States such as Arunachal Pradesh, Assam, Nagaland, Manipur and Meghalaya (and Tripura until May 2015) and recognised these “Do’s and Don’ts” as safeguards against the arbitrary use of power by security forces while acting in aid of civilian authority. These “Dos and Dont’s” were drawn up by the Indian Army itself and presented before the Apex Court in more than one case involving the arbitrary use of power by security forces. The Apex Court only accorded its stamp of approval to these guidelines.
In 2012, in response to my earlier RTI intervention, the MHA admitted that their Kashmir Desk had not issued any “Do’s and Dont’s” or any instructions or guidelines to the security forces operating in the “disturbed areas” in J&K declared as such under The Armed Forces (Jammu and Kashmir) Special Powers Act 1990. The FAA, MHA pointed out that this matter fell in the domain of the State Government but refused to transfer the RTI matter to J&K as the Central RTI Act does not apply to the State. The Indian Army which was also involved in this case, supplied a copy of the “Do’s and Dont’s” issued under the 1958 AFSPA law after their FAA issued a direction. With the help of a young law student who interned with us, we compared the “Do’s and Don’ts” listed in the NPMHR judgement with the version supplied by the Indian Army. Despite a few discrepancies, there was a clear match between the overall spirit and instructions contained in the two documents.
Three of the 10 commandments issue by the Chief of Army Staff under the 1958 AFSPA are an eyeopener to all who openly applaud or tacitly support the use of the civilian as a ‘human shield’ in J&K, in April this year:
“1. Remember that the people you are dealing with, are your own countrymen. All your conduct must be dictated by this one significant consideration.
2. Operations must be people friendly, using minimum force and avoiding collateral damage – restraint must be the key.
3. Be compassionate, help the people and win their hearts. Employ all resources under your command to improve their living conditions.”
The Army’s ‘Do’s and Dont’s’ as well as the COAS’s Ten Commandments are described as “binding instructions” and any disregard of these instructions would entail suitable action under Army Act, 1950. Do these commandments apply to J&K? That is the billion rupee question.
It is high time all human rights and transparency advocators revisit this issue to ascertain whether the Government of India has issued any “Do’s and Dont’s” for security forces operating in areas covered by J&K’s AFSPA. RTI advocators in J&K must also try to ascertain whether the J&K Government has issued any “Do’s and Dont’s” to security forces deployed in ‘disturbed areas’. The twin RTI laws operational at the Centre and in J&K can be used for this purpose.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

Comments

TRENDING

Mental health: We talk of poverty figures, but not increase in suicides since 2014

By IMPRI Team Highlighting  the issue of mental health and addressing the challenges involved, # IMPRI Gender Impact Studies Center (GISC) , IMPRI Impact and Policy Research Institute, New Delhi organized a panel discussion on Institutional Support for Mental Health and Wellbeing under the #WebPolicyTalk series The State of Gender Equality – #GenderGaps . The discussion was chaired by Prof Vibhuti Patel, Visiting Professor, IMPRI and Former Professor, Tata Institute of Social Sciences (TISS), Mumbai . The distinguished panel included – Prof Anuradha Sovani, Former Professor and Head, Department of Psychology, and Former Dean, Faculty of Humanities at SNDT Women’s University, Mumbai and National Core Committee member and Ethics Committee Chairperson, Association of Adolescent and Child Care India ; Dr Soumitra Pathare, Director, Centre for Mental Health Law & Policy at Indian Law Society, Pune ; Dr Swati Rane, Founder CEO at SevaShakti Healthcare Consultancy, Mumbai and Founder V

How India, Bangladesh perceive, manage Sunderbans amidst climate change

By IMRPI Team The effects of climate change have been evident, and there have been a lot of debates around the changes to be made locally to help and save the earth. In this light, the nations met at the COP 26 conference recently. To discuss this further, the Center for Environment, Climate Change and Sustainable Development (CECCSD) , IMPRI Impact and Policy Research Institute, New Delhi , organized a panel discussion on “COP 26 and Locally Led Adaptations in India and Bangladesh Sunderbans” under the #WebPolicyTalk series- The State of the Environment – #PlanetTalks . The talk was chaired by Dr Jayanta Basu, Director, Non-profit EnGIO, Faculty at Calcutta University and an Environmental Journalist, The Telegraph , ABP . The Moderator of the event, Dr Simi Mehta, CEO and Editorial Director, IMPRI , started the discussion by stressing the talk on the living conditions of people living in the Sunderbans Delta from both the countries, i.e. India and Bangladesh. According to the report

Dishonesty, corruption, manipulation and sustainable growth of mediocrity

By Arup Mitra* The theory of mediocrity would suggest that the meritorious who are always small in number as a nature’s gift will be dominated by a vast number of mediocre as the latter cannot withstand the inferiority they suffer from. By subjugating the merit, they derive a pleasure of having established their superiority. Such processes are functional in all spheres in life though the field of art is the worst sufferer. An artist mind is most sensitive and those who are meritorious in this lot possess exceptionally different traits. This makes them more vulnerable and, on the other hand, it paves the path of the mediocre to cast their shadows all around. Unjust and strong criticisms are sufficient to detract many. In developing countries, the modes of subjugation are many. Individuals do not hesitate to take recourse to criminal means as the subconscious prevalent with vengeance, accesses easily the outlets for execution. The lack of civility and the power of money form a unique com

NEP: Education must shift away from knowledge, move to teaching students

Dr Anjusha Gawande* The Education sector in the globe is changing dramatically. Many manual jobs may be captured over by machines as a consequence of multiple spectacular advances in science and technology, including the machine learning, and artificial intelligence. A professional workforce, particularly one that includes mathematics, computer science, and data science, as well as multidisciplinary competencies in the sciences, social sciences, and humanities, will be in incredibly popular. As a result, education must shift away from knowledge and toward teaching students, how to be creative and transdisciplinary, and how to innovate, adapt, and process information differently in innovative and rapidly changing sectors. The education development agenda at the global level is represented in Goal 4 (SDG4) of India's 2030 Agenda for Sustainable Development, which was adopted in 2015. Ministry of Education has announced the National Education Policy 2020 (NEP 2020) on 29.07.2020. In J

Migrant problem during Covid and the role of equality for cohesive development

By IMPRI Team  The covid-19 pandemic has deepened the pre-existing inequalities across socio-economic groups, the distressing images of migrants’ exposure remained attached in our minds but not a lot has changed in terms of data collection and policy making since then to understand the role of equality for cohesive development. Cohesive development also means that human beings should respect the boundaries of nature which they cross at their own peril and the peril of other living beings on earth. In lieu to this, The State of Development Discourses – #CohesiveDevelopment, #IMPRI Center for Human Dignity and Development (CHDD) , #IMPRI Impact and Policy Research Institute , New Delhi organized #WebPolicyTalk with Prof Amiya Kumar Bagchi, on The Role of Equality for Cohesive Development. The session is inaugurated by Ms Mahima Kapoor, researcher and assistant editor at IMPRI. Ms Mahima Kapoor extended her gratitude to the speaker, moderator and the discussant. The moderator for the eve

Parallel govts: How unity of various streams of freedom movements took shape in India

By Bharat Dogra  In one of the most inspiring examples of highly courageous spontaneous actions based on the unity of people, parallel governments were formed by freedom fighters in several parts of India in the course of the Quit India Movement in 1942. Although generally four such leading efforts have been identified in Satara (Maharashtra), Talcher (Odisha), Tamluk (West Bengal) and Ballia (Uttar Pradesh), there were some other smaller efforts as well such as those in Bhagalpur (Bihar) and Gurpal (Balasore, Odisha). It is very interesting to see in most of these efforts (also very significant for understanding the freedom movement) that there was constant merging of the various streams of the freedom movement, with more militant activities openly taking place with the help of quickly mobilized militias and this being combined with various constructive programs emphasized by Mahatma Gandhi such as anti-liquor efforts and anti-untouchability movements. In addition we see actions in

West Bengal police inaction in immoral trafficking case of a Muslim woman

Kirity Roy, Secretary, Banglar Manabadhikar Suraksha Mancha (MASUM) writes to the Chairman, National Human Rights Commission, on Muslim woman victim trafficking, police inaction, and need immediate rescue: I am writing to inform you about a case of illegal trafficking and profuse police inaction regarding the same of a marginalized Muslim teenager named Anima Khatun (name changed), daughter of Mr. Osman Ali. The victim and her husband had been residents of the village Daribas, under Dinhata police station Cooch Behar district since their marriage in 2014. Six months following their marriage, Anima Khatun along with her husband, sister-in-law, sister-in-law's husband as well as her in-laws shifted to Delhi in search of work. They stayed there for 2 years after which they all came back to their native village. They stayed at their native residence for about one month and then they went back to Delhi. In Delhi, Anima was in touch with her family till the next six months, after which t

Impact of climate change on Gujarat pastoralists' traditional livelihood

By Varsha Bhagat-Ganguly, Karen Pinerio* We are sharing a study[1] based learning on climate resilience and adaptation strategies of pastoralists of Kachchh district, Gujarat. There are two objectives of the study: (i) to examine the impact of climate on traditional livelihood of pastoralists of Gujarat state; and (ii) to explore and document the adaptation strategies of pastoralists in mitigating climate adversities, with a focus on the role of women in it. In order to meet these objectives, the research inquiries focused on how pastoralists perceive climate change, how climate change has impacted their traditional livelihood, i.e., pastoralism in drylands (Kr├Ątli 2015), and how these pastoral families have evolved adaptation strategies that address climate change (CC)/ variabilities, i.e., traditional livelihood of pastoralists of Kachchh district, Gujarat state. Pastoralism is more than 5,000 years old land-use strategy in India; it is practised by nomadic (their entire livelihood r

Bangladesh sets shining example of communal peace, harmony in South Asia

By Dr. Abantika Kumari Bangladesh is made up of 160 million people who are multi-religious, multi-ethnic, and multi-lingual. The Constitution of Bangladesh guarantees all citizens the freedom to freely and peacefully practice their chosen religions. Religious minorities make up roughly 12% of Bangladesh's present population, according to conservative estimates . Hindus account for 10% of the population, Buddhists for 1%, Christians at 0.50 percent, and ethnic minorities for less than 1%. As an example of how people of different religions can live together, cooperate together, and simply be together, Bangladesh is regarded. Bangladesh is a country that values religious liberty, harmony, and tolerance. Bangladesh's population is made up of a diverse spectrum of religious groupings and ethnic groups. Such communities and groups live in harmony, putting aside their differences and learning to embrace and respect the diverse and diversified culture that has contributed to Bangladesh

Political leaders' actions are causing decontextualisation of democracy

By Harasankar Adhikari In India, does democracy become a matter of prescription, i.e., to follow the footpath left? Isn't it, in some ways, the adoption of certain prescribed procedures and mechanisms, such as timely election and populist schemes for the poor, etc.? In some cases, acts of government and governance turn democracy into a myth. It is full of political party-based agendas. This continuous hegemonic practise creates a conditional situation for the people of India. People elect their representatives who are not their representatives. They are only representatives of a particular political party that nominated them in the election. Democratic decentralisation of power is undoubtedly a unique step towards the grass roots. But a Panchayat member has no free will to act without the party’s instruction and approval. Michael Saward, a political philosopher, defines democracy as a matter of correspondence in state-society relationships. But India’s parliamentary democracy is un