PRESS RELEASE
“Stop shielding criminals in the army and security forces”
Say Women’s Groups
Consultation on State, Sexual Violence and Impunity: Facts from the Field
Organized by WinG, WSS
December 23, 2012
Guwahati
Aggravated sexual violence in Guwahati in July 2012 and gang rape in Delhi this month have led to public outrage and anger, compelling the media and the government to take serious note of the rampant sexual violence against women. Even as the current attention on sexual violence on women raises several questions over laws, their enforcement and policing, there continues to be absolute silence and complete denial about sexual violence by the Army and the Central Armed Police Forces. It is high time to review and repeal laws and practices that promise complete impunity to the armed forces for sexual assault in counter insurgency conflict areas.
Can a woman be gang-raped, tortured and even murdered, and the men who did it get away scot-free? Why is the Indian army being allowed to get away with rapes and murders of women in India? Why is its morale sustained by repeated sexual violence against women and wanton killing of local population? Why are army and various security forces above the law? Why is there extensive denial of sexual assault in the power corridors? Why do women live in the fear of sexual assault by police or other security forces where they are present? Why do these forces entrusted with the security of the nation become threats to the security of innocent women and children?
A national level independent fact-finding team prepared a report on an attempted rape by a soldier in Dolopa, Sibsagar district of Assam. The incident took place on 13th July 2012 and the case was transferred to Army Court on 16th July 2012 by Chief Judicial Magistrate. Since then the army has interrogated the victim and other witnesses repeatedly on five occasions (15th July, 17th July, 22nd July, 31st August and 20th November 2012.). Again and again the girl has been harassed in the name of interrogation. In a press statement on 3rd August 2012, Go C of Army's 2 Mountain Division (DAO Division) said that the girl would get justice under “fast track”, but till today justice is awaited. The prosecutor of this case is an army officer, the judges in the court martial are also army officers and there is no transparency in the process of court martial. Given that the accused is an army jawan, it is in violation of the process of natural justice that the army should be its own judge and jury. Several questions arise - who is fighting on behalf of the victims in Army Court? Is the victim secure there? Is it a transparent process? Who is monitoring the progress of the case? Can this be called an impartial trial before an independent court.
The impunity stemming from laws regulating the security forces such as the Army Act, which places criminal acts perpetrated by army men while on active duty, such as rape and sexual assault, outside the jurisdiction of the ordinary criminal justice system. The prior right of the army and Central Armed Police Forces (CAPF) to seek custody of accused personnel under their respective Acts, for prosecution through court martial, and not before the ordinary criminal court, is a complete violation of the victim’s right to remedy and justice. Court martial trials adjudicated by officers belonging to the same security force as the accused personnel do not pass the test of a trial by an impartial and independent court. These laws allow the security forces to be Judge, Jury and Prosecutor, encouraging impunity. Along with the extraordinary powers and the immunity provided under the Armed Forces Special Powers Act (AFSPA), and section 197 of Cr.P.C ensures absolute denial of justice to the victims of these violations, including for grave crimes of murder and sexual violence.
We urge that as the victims of such violence are largely civilians, these crimes by security forces should be tried by the regular criminal court under the ordinary criminal law inscribed in Cr.P.C and not be tried through a court martial by the army itself. The meeting demands that the army cannot be allowed to have jurisdiction in matters of investigating sexual violence committed by its personnel while on active service; and that civilian victims of crime by the army could not be subjected to persecution in the name of prosecution of the accused. Clearly these offences have to be tried before the ordinary criminal courts of the country.
It is not just in the attempted rape case of Dolopa, but as much in the widely publicized case of rape and killing of Manorama Devi in Manipur, that the army has shown its true colours. Despite its men being found guilty, the Army filed a Special Leave Petition in the Supreme Court, challenging the jurisdiction of the state government to institute an Enquiry Commission. This continuing institutional shielding by the Army of men charged with grave crimes was condemned by the meeting. From the actions of the Indian state and the Army it appears that the morale of the security forces trump even the basic human rights of women to life, personal liberty and bodily integrity.
The compilation of cases of sexual violence by security forces over the past decade, and a research study on sexual violence by state agencies in Assam, entitled “ Sexual Violence and Impunity in the Conflict Zones of Assam’, researched by Anjuman Ara Begum, research scholar and member of WinG-Assam. The major findings are
· In several cases, it is alleged by the victims/survivors that filing of FIR against armed forces was very difficult. Rape is a cognizable offence but police refused to register FIR or registration of FIR was carried only after protests by local community. This resulted into delayed process of investigation and medical examination. Several medical reports were conducted after the lapse of 24 hours.
· In certain cases, allegations of rape, the legal proceedings were blocked by politician on promise of job and compensation to the survivor. When all these promises were not fulfilled the survivor has to pay the price. Her husband would release his frustration over her through physical violence and forced her to compromise with domestic violence.
· It is observed that in some cases there is negligence of duty by the authorities concerned and as a result the accused is enjoyed immunity and protection by the authority.
· Intentional delaying of investigations by the authority is also observed
· Process of trial was stopped due as the accused couldn’t be identified
· Monetary compensation failed to restore the life enjoyed by the survivor prior to sexual violence. Hence adequacy of compensation must be taken seriously.
The demands of the women’s groups are not limited to redressal of specific cases, but extend to a radical change in the approach of the state to democratic movements. A democratic, constitutional political establishment must not deploy the army or the Central Armed Police Forces (CAPF) against its own people, but address the grievances and demands of all citizens of this country through democratic processes and institutions, they said. Draconian laws like the Armed Forces (Special Powers) Act and section 197 of Cr.P.C must be repealed, and the immunity provided to security forces through laws like the Army Act must be abolished.
Key Demands:
· Repeal the draconian Armed Forces (Special Powers) Act, 1958 and Sec.197 Cr.P.C
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· Abolish immunity given to the army and other Central Armed Police Forces under Army Act and other laws, from prosecution before ordinary criminal court.
· Court Martial infringes upon the victims’ right to justice. All cases of sexual assault must be tried and prosecuted before the ordinary criminal court.
· Disband state-supported private militias and vigilante groups, such as salwa judum and others in the conflict areas of Central India, Northeast India and Kashmir. Take actions against the member of these groups accused of sexual violence and other human rights violations.
· Intimidation and restrictions on movements of women’s groups and other democratic rights groups, to conduct fact-finding of incidents of sexual and other forms violence in conflict areas, have to stop.
· End arbitrary and proxy arrests and illegal detention of women and children during search operation.
· More responsible and sensitive media reporting.
· The district level administration and judiciary should ensure strict adherence to the required procedures and safeguards (such as the DK Basu guidelines) for arrest, interrogation and detention.
· Institutions such as the National Human Rights Commissions (NHRC), the National Women Commissions (NCW) and the corresponding state commissions, created for safeguarded human rights and protection of vulnerable groups have to be more proactive. They should respond to all complaints lodged with them in a diligent and time bound manner.
· Expand the scope of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 to include custodial violence, torture, abetting such violence and any form of sexual violence, verbal or physical humiliation of Dalit and Tribal women. Amendments must recognize the specific nature of caste based violence and also the immense social, political and economic power differential when these violations are committed by the upper castes.
· The Criminal Law Amendment Bill, 2012 amending provisions relating to sexual assault to be sent to a Parliamentary Committee for further deliberations. While we welcome expansion of the definition of sexual assault, at a time when women are facing widespread and systematic sexual violence, we strongly oppose making the perpetrator of sexual assault gender neutral in non custodial situations.
Specific demands related to Sexual Violence and the State
Defining custodial violence: to include any incident of sexual assault be security forces/police/SPOs accompanying them, irrespective of where it occurs, since the perpetrators exercise power and control over the people of that area owing to their position of authority.
Special Guidelines: to be issued along the lines of the NHRC guidelines for encounter killings, as it cannot be expected that an aggrieved person/family who has been violated by personnel of the thana of her/their area, will go back to report the violation to that very same thana.
Registering cases: of all victims, even when the perpetrators are from the army, paramilitary or other security forces; no refuge under impunity provided under unjust laws such as the AFSPA.
Investigation and prosecution: Investigation into all complaints of sexual assault by security forces must be conducted by the police in accordance with the law, and supervised by a senior police officer. Immediate arrest of the accused and suspension of all accused from their posts once the FIR is registered.
Immunity from Prosecution: the requirement of sanction for prosecution under sec 197 of the Criminal Procedure Code should be abolished in cases of custodial sexual violence and other human rights violations.
Command responsibility: Higher ranking officials -SP the Collector or any othersenior officer in the chain of command of Army or the Central Armed Police Forces. Or Police should be held criminally liable for crimes committed by those under their command or within their control or authority. The senior officer must be held criminally liable for crimes committed by their subordinates if he knew or in these circumstances should have known about the commission of crimes and failed to take necessary measures to prevent or repress the commission of the crimes. that the subordinate forces
Security of women detainees: The lack, especially in remote small thanas, of women constables (in whose presence women under trials and prisoners are more likely to be safe) is a serious issue. If there is no woman constable on duty, that particular police thana must not be allowed to detain women.
Vulnerability in conflict situations: There must be a serious response from the district and state administration when a woman shows the courage to make a complaint of sexual violence. Instead the rape survivor, her family and other witness only get further terrorized by the people in authority. The administration should take suomoto cognizance of such complaints, whether they come directly, through media or any other source.
Strict adherence to Rule of Law: adherence to procedures and safeguards for protecting women in custody; women should be produced before the court at the earliest opportunity even before the mandatory 24 hours to be able to disclose original violations as well as further ill-treatments (if any) while in custody of police or jail authorities.
Judicial attention: Suo moto cognizance of any irregularity in the arresting procedure and delays in presenting the accused before the magistrate. Any non-compliance of the D.K.Basu guidelines and other provisions of the Criminal Procedure Code should attract strict action.
Liability and damages: Government’s responsibility grows manifold when a woman is in the custody of the State. While financial compensation cannot erase the pain the suffering caused, it is the duty of the State to pay exemplary damages without any bureaucratic delays to survivors of custodial rape.
For further information, please contact : Bondita 9864323337, (email bondita12@gmail.com) Anjuman9954082155 (anju.azad@gmail.com)
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