I. The UNSC Resolution 1325
On 31 October 2000, the United Nations Security Council (UNSC) adopted Resolution 1325 on women, peace and security. It among others, calling upon all parties to armed conflicts to “respect fully international law applicable to the rights and protection of women and girls, especially as civilians, in particular the obligations applicable to them under the Geneva Conventions of 1949 and the Additional Protocols thereto of 1977, the Refugee Convention of 1951 and the Protocol thereto of 1967, the Convention on the Elimination of All Forms of Discrimination against Women of 1979 and the Optional Protocol thereto of 1999 and the United Nations Convention on the Rights of the Child of 1989 and the two Optional Protocols thereto of 25 May 2000, and to bear in mind the relevant provisions of the Rome Statute of the International Criminal Court”. It also called upon all parties to armed conflicts to “take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict” while Clause 11 emphasised the responsibility of all States to “put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes including those relating to sexual and other violence against women and girls, and in this regard stresses the need to exclude these crimes, where feasible from amnesty provisions”.[1]
Access the full report, India: 20 Years of the UNSC Resolution 1325
II. The status of implementation of the UNSC Resolution 1325 in India: At least 114 reported cases of sexual violence from conflict-affected areas
“Is it true that you may have alleged rapists in the army? …Did you close the case because you didn’t get any help from army or is your helplessness a tacit understanding you have with the forces,” – asked the Supreme Court during the hearing of Extra Judicial Executions Victim Families Association & Anr versus Union of India & Ors on 18 April 2017.[2]
The above questions by the Supreme Court of India depict the extent of violence, including sexual violence perpetrated by the armed forces and the level of immunity enjoyed in the areas declared ‘disturbed’ under the Armed Forces Special Powers Act (AFSPA).
Twenty years later, India has failed to even ensure equality before the law and the equal protection of the law to women and girls living in armed conflict situations.
Since the adoption of the UNSC Resolution 1325, India continued to face insurgencies from the Left Wing Extremism (LWE) in 11 States of Chhattisgarh, Jharkhand, Odisha, Bihar, West Bengal, Andhra Pradesh, Telangana, Maharashtra, Madhya Pradesh, Uttar Pradesh and Kerala; six States of the North-Eastern region i.e. Arunachal Pradesh, Assam, Manipur, Meghalaya, Nagaland and Tripura; and Jammu and Kashmir.
As per the official figures, a total of 9,448 people were killed in conflict areas during 2009 to 2019 including 3,747 persons in the LWE affected areas; 3,070 persons in the North East; and 2,631 persons in Jammu and Kashmir.
From the adoption of the UNSC Resolution 1325 from 1 November 2000 to 30 October 2020, at least 114 cases of rape, molestation and other forms of sexual violence against women and girls perpetrated by armed forces of the Central government as well as state police were reported from 11 States afflicted by armed conflicts i.e. Andhra Pradesh, Arunachal Pradesh, Assam, Chhattisgarh, Jammu & Kashmir, Jharkhand, Maharashtra, Manipur, Meghalaya, Odisha and Tripura as given below:
Table 1: Reported cases of VAW in conflict situations in India from 1 November 2000 to 30 October 2020
An analysis of these 114 cases of sexual violence shows that the maximum cases were reported from Assam (21) followed by Manipur (18), Chhattisgarh (17), Jammu & Kashmir (16); Tripura (14); Jharkhand (7) and Meghalaya (6); Arunachal Pradesh (6); Odisha (5); Andhra Pradesh (3) and Maharashtra (1).
An analysis of these 114 cases of sexual violence also reveal that a total of 224 women and girls were victimised. The maximum number of victims were reported from Chhattisgarh (92 victims); Assam (26 victims); Manipur (21 victims); Jammu & Kashmir (20 victims); Tripura (19 victims); Andhra Pradesh (16 victims); Jharkhand (nine victims); Meghalaya (seven victims); Arunachal Pradesh (seven victims); Odisha (five victims); and Maharashtra (two victims).
The violence against women included 42 cases of gang rape, six cases of murder, three cases of rape of pregnant women, four cases of rape of differently-abled, three cases of being shot dead for resisting molestation and rape, attempt to rape, stripping, molestation etc.
Minor girls were particularly vulnerable to sexual violence and 74 out of the 224 total victims constituting 33% were minor girls between 7 -17 years.
Tribal women and girls were disproportionate victims as 156 out of the 224 total victims constituting 69.6% were tribals.
The perpetrators of sexual violence against women by the state actors included persons serving with the Indian Army, Central Reserve Police Force (CRPF), Sashastra Seema Bal (SSB), Indo-Tibetan Border Police (ITBP), Border Security Force (BSF), Assam Rifles (AR), Indian Reserve Battalion (IRBN), Jammu and Kashmir Light Infantry (JKLI), the State police, Greyhounds Special Police of Andhra Pradesh, Special Police Officers (SPO), Jharkhand Armed Police (JAP), State Police Commandos, Manipur Rifles, Tripura State Rifles (TSR), and the Special Operation Group (SOG).
Members of the armed opposition groups (AOGs) were also responsible for rape and other sexual violence. There were reports of forced marriage and rape in Jammu & Kashmir by the AOGs, mass rape of tribal women by the members of United National Liberation Front (UNLF) in Manipur, killing for resisting rape attempt by the AOGs in Meghalaya; and rape and sexual exploitation by the Maoists. The perpetrators of sexual violence against women by the non-state actors included Borok National Convention of Tripura (BNCT), Laskhar-e-Toiba, Hizb-ul-Mujahideen, United National Liberation Front (UNLF), Garo National Liberation Army (GNLA), United Liberation Front of Asom (ULFA), and the Maoists.
The Government of India provided impunity to the security forces while it failed to bring the members of the AOGs to justice.
The members of the Indian Army and the armed forces enjoyed immunity from prosecution through the requirement of prior sanction of the appropriate authorities under section 197 CrPC[3] and under section 45 of the CrPC[4] until the enactment of the Criminal Law Amendment Act, 2013. Further, Section 6 of the Armed Forces Special Powers Act (AFSPA), 1958[5] and Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990[6] also provided similar immunity through the requirement of prior sanction.
The denial of permission for prosecution of the members of the armed forces personnel serving in disturbed areas, for the offences of rape and murder under Section 6 of the AFSPA is an admitted fact. Replying to a question on the number of requests for sanction of prosecution received by Government for the prosecution of armed forces personnel serving in disturbed areas, then Defence Minister Late Manohar Parrikar in a written reply dated 24 February 2015 before the Rajya Sabha stated that permission was denied in 30 out of the total 38 requests for sanction of prosecution received under the AFSPA during 16 June 1991 to till date while requests in 8 case were pending.[7] Subsequently, the Minister of State in the Ministry of Defence Dr. Subhash Bhamre in a written reply in the Rajya Sabha on 1 January 2018 stated that permission for the prosecution was denied in 47 out of total 50 requests, including four cases of molestation and rape, received from the J&K Government during 2001–2016 for prosecution sanction against armed forces personnel under the AFSPA while requests in three cases were pending as on 1 January 2018.[8] It implies that no sanction under the AFSPA had been given ever.
Consequently, India’s failure to implement the UNSC Resolution 1325 of 2000 has been repeatedly highlighted at national and international level.
In her report dated 1 April 2014 to the United Nations Human Rights Council (UNHRC) during the twenty-sixth session, the United Nations Special Rapporteur (UNSR) on violence against women following her mission to India during 22 April – 1 May 2013 stated that “Women living in militarized regions, such as Jammu and Kashmir and the north-eastern states, live in a constant state of siege and surveillance, whether in their homes or in public. Information received through both written and oral testimonies highlighted the use of mass rape, allegedly by members of the State security forces, as well as acts of enforced disappearance, killings and acts of torture and ill-treatment, which were used to intimidate and to counteract political opposition and insurgency”.[9]
India rejected the report of the UNSR on Violence Against Women as ‘baseless’ and ‘full of sweeping generalisations’[10] and did not implement the recommendations.
India also did not implement the recommendations made by the Committee for Elimination of Discrimination Against Women (CEDAW) on 24 July 2014 for addressing violence against women in conflict situations.[11] Despite reminders on 6 December 2016[12] and 21 September 2017,[13] India has so far failed to give information to the CEDAW on measures taken to prevent and protect women and girls from violence, including sexual violence, during military operations in areas declared “disturbed” under the AFSPA.
India even refused to implement the key recommendations of Justice Verma Committee established by it following the Nirbhya gang rape and murder case to amend the AFSPA to remove the requirement of prior sanction in cases of sexual assault.[14]
India enacted the Criminal Law (Amendment) Act, 2013 to implement the recommendations of the Justice Verma Committee report. While amending Section 197 of the CrPC, the Criminal Law Amendment Act of 2013 declared that “no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 3540, section370, section375, section376, section 376A, section376C, section 3760 or section 509 of the Indian Penal Code”.[15] This implies that for rape committed by a member of the armed forces deployed in an area by the Central or a State Government under Section 376(1)(2)(c) of IPC as per the Criminal Law (Amendment) Act, 2013, prior sanction is still required. Further, prior sanction is required for prosecution including in cases of sexual offences under the AFSPA.
III. Amend the AFSPA to implementation the UNSC Resolution 1325 in India
India has denied equality before the law and equal protection of the law to the women and girls who are victims of sexual violence by the armed forces. India must therefore amend Section 197 of the CrPC as well as the Section 6 of the AFSPA to remove the requirement of prior sanction with respect to rape by a member of the armed forces deployed in an area by the Central or a State Government to fully implement UNSC resolution 1325 and ensure equality before the law and equal protection of the law.
_________________________________
[1]. United Nations Security Council Resolution 1325/2000; available at: http://unscr.com/en/resolutions/doc/1325
[2]. SC pulls up centre, Manipur govt for not probing cases of rape against army men, Livemint, 18 Apr 2017; available at: https://www.livemint.com/Politics/gBhFbUy769JKeEDmRxOrCP/SC-pulls-up-centre-Manipur-govt-for-not-probing-cases-of-ra.html
[3]. See Chapter XIV “Prosecution of Judges and Public Servants” http://www.icf.indianrailways.gov.in/uploads/files/CrPC.pdf
[4]. See Chapter V “Protection of members of the Armed Forces from Arrest” at http://www.icf.indianrailways.gov.in/uploads/files/CrPC.pdf
[5]. http://mha.nic.in/sites/upload_files/mha/files/pdf/armed_forces_special_powers_act1958.pdf
[6]. http://mha.nic.in/sites/upload_files/mha/files/pdf/Armedforces%20_J&K_%20Splpowersact1990.pdf
[7]. Rajya Sabha Unstarred Question No. 59 asked by Member of Parliament by Mr. Avinash Pandey and answered on 24 February 2015 by former Defence Minister late Manohar Parrikar; available at: https://rajyasabha.nic.in/rsnew/Questions/QResult.aspx
[8]. Rajya Sabha Unstarred Question No. 1463 asked by Member of Parliament by Mr. Hussain Dalwai and answered on 1 January 2018 by Dr. Subhash Bhamre, MoS, Ministry of Defence; available at: https://rajyasabha.nic.in/rsnew/Questions/QResult.aspx
[9].Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo (A/HRC/26/38/Add.1) dated 1 April 2014 on her mission to India during 22 April – 1 May 2013; available at: https://www.ohchr.org/EN/Issues/Women/SRWomen/Pages/CountryVisits.aspx
[10]. See A/HRC/26/38/Add.4, Addendum – Mission to India: comments by the government to the report of the Special Rapporteur
[11]. The Concluding Observations of the UN CEDAW Committee on the combined fourth and fifth periodic reports of India dated 24 July 2014 are available at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/IND/CO/4-5&Lang=En
[12]. First reminder dated 6 Dec 2016 sent to India by the Rapporteur on Follow-up; available at: https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/Ind/INT_CEDAW_FUL_Ind_25972_E.pdf
[13]. Second reminder dated 21 Sept 2017 sent to India by the Rapporteur on Follow-up; available at: https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/Ind/INT_CEDAW_FUL_Ind_28967_E.pdf
[14]. Justice Verma Committee report is available at https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf
[15]. The Criminal Law (Amendment) Act, 2013 is available at: http://egazette.nic.in/WriteReadData/2013/E_17_2013_212.pdf
