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50% of AFSPA human rights complaints from J&K: Monetary relief in 3% cases

By Venkatesh Nayak*
Last week, the media reported on the likelihood of the Armed Forces (Special Powers) Act, 1958 (AFSPA) being withdrawn from certain parts of Arunachal Pradesh and adjoining parts of Assam. On 4th May, 2017, AFSPA was reimposed for a period of three months in the districts of Tirap, Changlang and Longding in Arunachal Pradesh and in the adjoining areas of Assam falling within the jurisdiction of nine police stations or police outposts. Media reports indicate a line of thinking within the Government of India that favours phased withdrawal of AFSPA from these areas. AFSPA has been imposed in the States of Meghalaya and Nagaland as well. The Government of Tripura lifted AFSPA from the State in May 2015. Parliament enacted the Armed Forces (Jammu and Kashmir) Special Powers Act (J&K-AFSPA) in 1990. J&K-AFSPA covers all of Jammu & Kashmir except the districts of Kargil and Leh.
Towards the end of May this year, the media reported some macro statistics presented by an unnamed senior officer about how people’s complaints of human violations against defence personnel had been handled. It was claimed that only 66 of 1,695 complaints of human rights violations received since 1994 were found to be true. Apparently 150 defence personnel were punished and compensation awarded in 49 cases during the last 23 years. Details of individual cases or the place of origin of such complaints received and disposed were not provided. Similarly, information such as the rank of the personnel punished, the nature of punishment given to each person, size of the compensation paid and the names of recipients were not placed in the public domain. Overall, the impression that a reader would gain from these assertions is that an overwhelming majority of complaints of human rights violations were not true at all. Meanwhile it must be remembered that The Supreme Court is currently hearing a case involving more than 1,500 complaints of human rights violations committed by the defence forces and the paramilitary forces operating in the State of Manipur alone.
The purpose of this email alert is to share official data obtained under the Right to Information Act, 2005 (RTI Act) from the Union Ministry of Home Affairs (MHA) regarding the number of complaints of human rights violations received and disposed between 2012-2016 (up to January). These figures provide a much larger picture of the number of complaints of human rights violation as they include data pertaining to the actions of paramilitary personnel as well.

The RTI Intervention

On 8th December, 2005, five Lok Sabha MPs demanded detailed information about the number of complaints of human rights violations received against the armed forces – crime-wise and State-wise, including disposal and pending figures. They also sought to know the mechanisms put in place for addressing such complaints. The Union Home Minister provided some information about the areas covered by AFSPA laws and the mechanism put in place for handling complaints of human rights violation. The Minister assured that data about specific complaints of human rights violation and action taken on them would be collected and laid on the table of the House.
While researching issues pertaining to Jammu and Kashmir, I came across this query and partial reply. As there was little information available in the public domain as to whether the data about crime-wise human rights violations were eventually tabled in the Lok Sabha or not. I submitted an RTI application in April, 2017 seeking the following information:
“Apropos of the web printout of the reply to the Unstarred Question #1533, presented in the 16th Lok Sabha on 8/12/2016, I would like to obtain the following information from your public authority:The detailed information that has been collected till date as per the reply of the Hon’ble Minister of State, Ministry of Home Affairs given to paras #(b) and (c) of the said Unstarred Question;
An year-wise list of complaints or communications regarding allegations of human rights violations in Jammu and Kashmir received by the human rights cells specified at para #(e) of the said reply from 01 January, 2009 till date;
Details of action taken in relation to complaints or communications of human rights violations in Jammu and Kashmir received by the human rights cells specified at para #(e) of the said reply from 01 January, 2009 till date.”
Surprisingly, the Central Public Information Officer (CPIO) of the Ministry of Home Affairs (MHA) furnished the crime-wise data of human rights violations in both English and Hindi within 30 days, free of charge. It is not clear as to when this data was tabled in the Lok Sabha as the date of tabling is not mentioned in the document that the CPIO sent.
The MHA did not send any information about details of complaints received by the human rights cells. I have already submitted a first appeal on this issue.

Human rights violation complaints- receipt and disposal: preliminary data analysis

According to the official figures supplied by the MHA
i) A total of 186 complaints of human rights violations were received against the armed forces (defence forces and paramilitary forces) deployed in the States of Assam, Arunachal Pradesh, Jammu and Kashmir, Manipur, Meghalaya, Nagaland and Tripura during the period of a little over three years between 2012 to January 2016. However data for Tripura is up to 27th May, 2015 when the State Government ended the application of AFSP across the State
ii) By January 2016, more than 2/3rds of these complaints (127) are said to have been disposed of. The data supplied by MHA under RTI does not indicate whether these complaints were found to be true or false. Perhaps this is because of the manner in which the queries raised in the Lok Sabha were drafted. They only sought information about the receipt and disposal of complaints rather than the manner of their disposal. Interestingly, more than 57% of the complaints of human rights violations received from Assam are shown as pending. The manner of disposal of human rights complaints and the pendency of cases for more than a year are issues which readers, human rights advocates and mediapersons need to probe further by filing more specific information requests with the MHA.
iii) J&K accounted for almost half number (49.5%) of the human rights complaints received against the armed forces during this period. A little more than 31% of the complaints were received from people in Assam. Manipur accounted for a little more than 11% of the total number of complaints received. Arunachal Pradesh, Meghalaya and Tripura accounted for less than 10 complaints each. Only one complaint was received from Nagaland during this period.
iv) There are 12 categories of complaints of human rights violation ranging from “abuse of power” to causing deaths”. The most number of complaints seem to have been received against the defence forces rather than the paramilitary forces of the Union such as the CRPF, Assam Rifles etc. deployed in the seven States. About 40% of the complaints are clubbed under the category- “defence forces” without any detailing as to what kinds of complaints they are. However when the distinct categories of “death in army encounter” and “death in army firing” are added, the proportion of complaints received against the defence forces goes up to more than 61% of the total number of complaints received against all armed forces operating in the seven States. As mentioned before, the manner of handling of these cases is not disclosed in the data compiled by MHA except to say how many were disposed of.
v) 10 of these complaints relate to the crime of abduction and rape- received from Arunachal Pradesh, Assam, J&K and Tripura. The data does not specify whether these were committed by the defence forces or the paramilitary forces deployed in the seven States. 50% of these cases are said to have been received from Assam alone- four of which were sent in 2015-16 (up to January)- all of which are shown as pending. Overall 6 of the 10 cases received from were not disposed of until January 2016. The current state of these complaints is not known. In the remaining cases of rape that were disposed of, the data does not indicate the manner of disposal.
vi) MHA data shows that monetary relief to the tune of Rs. 6.47 crores was recommended in 117 cases during this period. It is not known whether this was ex gratia relief granted or compensation awarded. Further, it is not known how many complainants or victims actually received the monetary relief and which Government (Central or State) made the payments. (It must be pointed out that while ex gratia payment is only an interim relief, compensation amounts to admission by the State that the perpetrators were indeed guilty of committing these human rights violations.)
vii) The MHA data indicates that while J&K accounted for almost 50% of the complaints of human rights violation in various categories, its share in the monetary relief recommended was 3% at Rs. 21,00,000. Only five cases were found to be eligible for monetary relief in J&K. On the other hand, Assam which accounted for less than a third of the complaints, received the largest proportion (48%) of monetary relief recommended by the Government. In 57 cases from Assam, monetary relief was recommended to the tune of Rs. 3.10 crores.
viii) The second largest share of monetary relief was recommended for Manipur- at Rs. 2.28 crores in 38 cases followed by Arunachal which accounted for only three complaints but monetary relief to the tune of Rs. 36 lakhs was recommended. Meghalaya and Tripura received recommendations of monetary relief to the tune of Rs. 22 lakhs against six and eight cases respectively. No monetary relief was recommended in the case of Nagaland in the lone complaint of abuse of power received in 2015-16 (up to January, 2016).
According to MHA data, some of the cases where monetary relief was recommended pertain to the previous year as well (carry forward). The status of pending cases as of now also need to be ascertained by making further information requests under the RTI Act.

What are AFSPA laws intended for?

According to repeated assertions by the Central Government, the defence forces and the paramilitary forces (such as the CRPF, Assam Rifles, BSF etc.) have been empowered by AFSPA laws in order to protect the sovereignty and territorial integrity of India and overcome any insurgency. In those parts of the States declared as ‘disturbed areas’, under AFSPA laws, the armed forces personnel (defence and paramilitary forces) have the power to open fire to the extent of causing death of any person, conduct searches to flush out militants of groups (sometimes named in the notification itself, arrest them and hand them over to the local police, search any premises and confiscate arms and ammunition or explosive substances and stop and search any vehicle and apprehend any proclaimed offender or any person who is suspected of committing or is likely to commit a non-cognizable offence (under the ordinary criminal law the police cannot arrest any person accused of committing a non-cognisable offence without a warrant from the appropriate magistrate).

RTI can be a tool for greater transparency and accountability

There is an urgent need for advocates of human rights, transparency and accountability to demand access to more detailed information about these and other complaint cases received from areas under AFSPA laws. The RTI Act can serve as a valuable tool for this purpose.

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

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