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India: Deployment of Special Police Officers undermining justice and human rights

by Asian Legal Resource Centre, 2 June 2009

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Asian Legal Resource Centre

FOR IMMEDIATE RELEASE
- June 2, 2009
- ALRC-CWS-11-03-2009

Language(s): English only

HUMAN RIGHTS COUNCIL
- Eleventh session

A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

INDIA: Special police officers in use in armed conflicts, committing rights violations

On 23 May 2008, in a meeting held at Imphal in Manipur state, the Manipur state government published a set of guidelines for the deployment of Special Police Officers (SPO) in that state. Manipur is the third state in India that is actively resorting to the recruitment, training and deployment of SPOs. The Manipur state government’s decision to deploy SPOs, however, came a few weeks after the resolution of the Jammu and Kashmir state government to terminate a similar programme.

Jammu and Kashmir was the first state in the country to deploy SPOs. It started during the height of anti-India militant activities in 1990. SPOs are ordinary villagers, recruited by the state on a temporary basis, trained to use weapons and deployed to carryout combat operations in a limited territory, often within a district, in a state. The training offered to the SPOs lasts less than a month and is limited in learning how to set up an ambush, fire a weapon and some basic physical exercise.

The SPOs are paid a monthly wage — ranging from 1500 to 3000 Indian Rupees — but their services are not considered a regular employment for any legal purposes. Their deployment, in theory, is under the supervision of the state police, but in practice they are on their own, in essence, forming a loosely structured armed village force. For all practical purposes, the only difference between an SPO and an anti-state militant is that the SPOs allegedly fight for the state, whereas the militant fights against it.

However, 18 years since the deployment of the first batch of SPOs in Jammu and Kashmir, the state government was convinced that the SPOs did more harm than help and decided to terminate the programme. Some of the reasons cited by the state government include concerns about the SPOs killing and injuring innocent civilians, extracting protection money and engaging in human rights violations.

The deployment of SPOs in Jammu and Kashmir, according to the government, introduced a third and unwanted dimension to the armed conflict. In addition to the low intensity armed conflict between state troops and militants, the SPOs started engaging in a parallel fight, often for reasons unrelated to militancy, where the rules of engagement were defined by boundary disputes between villagers, family feuds and disputes over cattle. Within a span of 18 years, a considerable number of civilian lives were lost in Jammu and Kashmir. The SPOs killed ’suspects’ they were free to choose, waylay and murder. An alarming number of SPOs also lost their lives as they became easy targets for militants.

As the allegations against the SPOs increased, and their deployment proved to be as non-manageable as the militant activities in the state, the state government of Jammu and Kashmir found it sensible to terminate the programme in April 2008. While it took 18 years and hundreds of lives for the state government of Jammu and Kashmir to decide that the programme is a failure and thus to terminate it, two other state governments in India, Manipur and Chhattisgarh, have adopted the practice of deploying SPOs within their jurisdictions.

In the past two years, the Chhattisgarh state government has deployed SPOs allegedly to counter the Naxalite (a militant wing with ideological and operational similarities to the Maoists in Nepal) activities in the state, whereas the Manipur state government has deployed SPOs to fight terrorist groups. The SPOs in Chhattisgarh receives the support of yet another state-sponsored extremist Hindu militant group, the Salwa Judum.

The archaic Police Act, 1861, a law enacted 88 years prior to the country becoming a republic, provides the legal basis for the recruitment of SPOs. The police force in the pre-independent India was constituted and maintained primarily to control popular uprisings and to maintain law and order to the extent to which it suited the coloniser’s interest. The clandestine benefit of employing an SPO in the 19th century was that, as SPOs are not regular police officers, they could be deployed for duty without the administration having to pay adequate salaries to them. The same attitude continues today. In addition to the financial benefit, the possibility of the SPOs being locally recruited and deployed, avoids logistical concerns relating to troop movements. SPOs also do not require long-term training and their acts are considered, owing to a misinterpretation of the law, not to be binding upon their senior police officers and therefore the government, as an SPO is not considered to be a normal state employee.

Section 17 of the Police Act allows the recruitment and deployment of the SPOs. However, this provision of law in its original form is intended only to provide immediate and temporary assistance to a police action, in circumstances that demands civilian assistance for maintaining law and order in a given area for a short period of time, for instance, to contain a riot. Such a liberty was a statutory choice required by the British police and a colonial Magistrate to contain anti-British uprisings within the colony. The only requirement to be complied for the appointment of SPOs is an order from the local Magistrate, always given upon the request of a police officer.

The failure of an Indian Coolie to assist his colonial master in silencing a riot called for immediate punishment. Section 19 of the Act reads "if any person being appointed a special police officer as aforesaid shall without sufficient excuse, neglect or refuse to serve as such, or to obey such lawful order or direction as may be given to him for the performance of his duties, he shall be liable, upon conviction before a Magistrate, to fine not exceeding fifty rupees [emphasis added] for every neglect, refusal or disobedience". Even today, this provision of law remains unchanged.

Fifty rupees, the equivalent to the cost of ten sovereigns of pure gold in 1861, was a big enough a fine to scare a Coolie and force him to obey. 148 years since the Act was implemented, this provision of law remains the same. The penal liability of an SPO for injuring or murdering a person in Chhattisgarh or Manipur, according to the Act, is still fifty rupees. The outsourcing of state duty thus only creates a negligible economic liability upon the state governments. The continuing exploitation of this archaic law also exposes the fact that the principles defining policing policy in India have not changed in essence from its original form introduced during a completely different socio-political environment. This in part suggests answers to the increase in anti-state activities in different regions in the country.

The Naxalite activities in Chhattisgarh and the increase in terrorist activities in Manipur are partially rooted in the disregard of the Indian state of the rural population. Feudalism and the brutal exploitation of the tribal communities and their natural resources is one of the reasons for the emergence of the Naxalite movement in Chhattisgarh. In essence, Naxalite and terrorist activities in Chhattisgarh and Manipur finds its philosophical base against the writ of the state from the discrimination faced by a large section of the population from the government. Unfortunately, the response of the government to counter this sentiment is once again based upon the destructive principle of divide and rule.

During the past thirty years, the local and indigenous communities in both these states have increasingly found their prospects for a decent life rapidly diminishing. In such a context, the prospect of being paid by the state as a SPO is an incentive for an ordinary villager, which is exploited by the government. Both in Chhattisgarh and in Manipur, villagers are recruited as SPOs with the promise that they would be eventually absorbed into the regular police force. Almost ninety percent of the SPOs in Chhattisgarh and Manipur are the members of indigenous tribal communities in these states.

The engagement of the SPOs breaches accepted norms of justice and human rights. Violence countered by violence is counterproductive. The Asian Legal Resource Centre (ALRC) has documented cases where minors are recruited and deployed as SPOs. Some of them even serve inside police stations in Raipur, the capital city of Chhattisgarh. It must be a matter of shame for the government of India, the third largest contributor of civilian police to the United Nations, to employ SPOs within its own jurisdiction. For instance, according to the report of the Dantewada District Collector in Chhattisgarh state, 1386 SPOs have been recruited in Dantewada Police District and 2662 SPOs recruited in Bijapur Police District to fill the vacancies within the police force. Of the 4048 SPOs in Chhattisgarh, 299 are female. In Manipur an estimated 1200 villagers are currently deployed as SPOs. While the lack of manpower within the regular police force is posed as an excuse for the deployment of SPOs in both these states, the government has not yet resorted to filling the existing vacancies within the police force.

Often the recruitment of SPOs in Chhattisgarh is carried out at the behest of the Salwa Judum, an organisation that has beendeclared as illegal by the Supreme Court of India. Once the Salwa Judum identifies a villager to be recruited as an SPO, the villager joins the force due to the fear that a refusal might be sufficient for the Salwa Judum to brand the villager as a Naxalite. Under these circumstances the consent to join as an SPO is obtained under coercion.

There is no legal premise, other than the Police Act, 1861, within which the employment of SPOs could be legitimised in India. However, the Constitutional vires of this aspect of the law cannot be challenged since it does not directly breach any particular provision of the Constitution. However, the recruitment and deployment of the SPOs breaches India’s human rights obligations under Article 9 of the ICCPR. Unfortunately, no thematic mandates under the United Nations framework have addressed the concern about the SPOs in India so far.

In this context the Asian Legal Resource Centre urges the Council to:

1. Strongly recommend to the government of India to immediately terminate its programme of recruitment, training and deployment of SPOs in the country;

2. Urge the government to take necessary steps for the safe rehabilitation of discharged SPOs until the conflict in the states of Chhattisgarh and Manipur is over;

3. Suggest to the government means and ways by which it can find a peaceful end to the low intensity armed conflicts in the country;

4. Recommend to the government viable initiatives to be taken for grievance redress of the indigenous communities residing in Chhattisgarh and Manipur.

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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.

Posted on 2009-06-02