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

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur* Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

Where’s the urgency for the 2,000 MW Sharavati PSP in Western Ghats?

By Shankar Sharma*  A recent news article has raised credible concerns about the techno-economic clearance granted by the Central Electricity Authority (CEA) for a large Pumped Storage Project (PSP) located within a protected area in the dense Western Ghats of Karnataka. The article , titled "Where is the hurry for the 2,000 MW Sharavati PSP in Western Ghats?", questions the rationale behind this fast-tracked approval for such a massive project in an ecologically sensitive zone.

A Hindu alternative to Valentine's Day? 'Shiv-Parvati was first love marriage in Universe'

By Rajiv Shah  The other day, I was searching on Google a quote on Maha Shivratri which I wanted to send to someone, a confirmed Shiv Bhakt, quite close to me -- with an underlying message to act positively instead of being negative. On top of the search, I chanced upon an article in, imagine!, a Nashik Corporation site which offered me something very unusual. 

Will Bangladesh go Egypt way, where military ruler is in power for a decade?

By Vijay Prashad*  The day after former Bangladeshi Prime Minister Sheikh Hasina left Dhaka, I was on the phone with a friend who had spent some time on the streets that day. He told me about the atmosphere in Dhaka, how people with little previous political experience had joined in the large protests alongside the students—who seemed to be leading the agitation. I asked him about the political infrastructure of the students and about their political orientation. He said that the protests seemed well-organized and that the students had escalated their demands from an end to certain quotas for government jobs to an end to the government of Sheikh Hasina. Even hours before she left the country, it did not seem that this would be the outcome.

Structural retrogression? Steady rise in share of self-employment in agriculture 2017-18 to 2023-24

By Ishwar Awasthi, Puneet Kumar Shrivastav*  The National Sample Survey Office (NSSO) launched the Periodic Labour Force Survey (PLFS) in April 2017 to provide timely labour force data. The 2023-24 edition, released on 23rd September 2024, is the 7th round of the series and the fastest survey conducted, with data collected between July 2023 and June 2024. Key labour market indicators analysed include the Labour Force Participation Rate (LFPR), Worker Population Ratio (WPR), and Unemployment Rate (UR), which highlight trends crucial to understanding labour market sustainability and economic growth. 

Venugopal's book 'explores' genesis, evolution of Andhra Naxalism

By Harsh Thakor*  N. Venugopal has been one of the most vocal critics of the neo-fascist forces of Hindutva and Brahmanism, as well as the encroachment of globalization and liberalization over the last few decades. With sharp insight, Venugopal has produced comprehensive writings on social movements, drawing from his experience as a participant in student, literary, and broader social movements. 

Authorities' shrewd caveat? NREGA payment 'subject to funds availability': Barmer women protest

By Bharat Dogra*  India is among very few developing countries to have a rural employment guarantee scheme. Apart from providing employment during the lean farm work season, this scheme can make a big contribution to important needs like water and soil conservation. Workers can get employment within or very near to their village on the kind of work which improves the sustainable development prospects of their village.

'Failing to grasp' his immense pain, would GN Saibaba's death haunt judiciary?

By Vidya Bhushan Rawat*  The death of Prof. G.N. Saibaba in Hyderabad should haunt our judiciary, which failed to grasp the immense pain he endured. A person with 90% disability, yet steadfast in his convictions, he was unjustly labeled as one of India’s most ‘wanted’ individuals by the state, a characterization upheld by the judiciary. In a democracy, diverse opinions should be respected, and as long as we uphold constitutional values and democratic dissent, these differences can strengthen us.

94.1% of households in mineral rich Keonjhar live below poverty line, 58.4% reside in mud houses

By Bhabani Shankar Nayak*  Keonjhar district in Odisha, rich in mineral resources, plays a significant role in the state's revenue generation. The region boasts extensive reserves of iron ore, chromite, limestone, dolomite, nickel, and granite. According to District Mineral Foundation (DMF) reports, Keonjhar contains an estimated 2,555 million tonnes of iron ore. At the current extraction rate of 55 million tonnes annually, these reserves could last 60 years. However, if the extraction increases to 140 million tonnes per year, they could be depleted within just 23 years.