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Impunity Institutionalized
Armed Forces Special Powers Act completes 50 years as Indian law
Jagmohan Singh
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While people
couldn’t care less and the State continues to revel in the
impunity granted to the armed forces, well-meaning social
activists, journalists, academicians and young human rights
activists demand the repeal of the Armed Forces Special Powers
Act, 1958 at a Seminar held in
New Delhi
on 22nd May 2008
–marking the 50 years of the legislation. The event went totally
unreported in the Indian media. The author files this report and
comments on various aspects of the draconian law. |
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 50
years ago, on
22nd
May 1958, in the face of rising political dissent in the North-east,
India decided to add fiction to its laws -the Armed Forces Special
Powers Act. Though enacted only for a year, it has continued since.
It contravenes the fundamental principles of jurisprudence, Indian
law, particularly the right to life and right to a fair trial and
international standards, particularly the derogable and non-derogable
provisions of the International Covenant on Civil and Political
Rights to which
India
is a signatory.
Though meant to
be a tool for restoring public order by aiding civil authority, the
AFSPA empowers the State governor to subsume the powers of the State
government to declare “undefined” disturbed areas. It also empowers
non-commissioned officers of the armed forces to arrest without
warrant, to destroy any structure that may be hiding absconders
without any verification, to conduct search and seizure without
warrant and to shoot causing death. No legal proceeding against
abuse of such arbitrary powers can be initiated without the prior
permission of the federal government. Various interpretations of the
provisions of this Act by various Indian courts have seriously
undermined the role of the judiciary while adjudicating upon the
validity of this law.
This legislation
has been used as an instrument to deal with the people of the
North-east militarily and not politically. While the people of
Punjab
had a brief taste of the Act in the 1980s, the people of
Kashmir
continue to be subjected to the same Act since 1990.
Families of
victims have lost count of the various times that the provisions of
the Act have been used to crush all forms of dissent –political,
social and even personal. In the name of keeping the high morale of
the “protectors of the country-the armed forces” a free-run has been
given to the Indian Armed Forces for far too long in this part of
the Indian territory, which according to the dissenters has been
“illegally occupied” by the Indian state.
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The Armed
Forces Special Powers Act, 1958 must be repealed and there is no
further argument on it. |
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To unnerve a
brutal power regime and to awaken it from its slumberous torpor,
something major had to happen. The continuity of the Act in “far
off” North-east has simply gone unreported in the Indian mainstream
media. The death of one woman -Manorama Devi and the steadfastness
of another, who is on fast unto death for the past eight years –Ms.
Sharmila, have brought the issue into focus. The numerous acts of
human rights abuses under the Act came to the fore after the
gruesome murder of Manorama by the security forces operating under
the Act in 2004. The people of Manipur rose up not only against the
murder but also against the Act. Civil liberties organizations and
concerned citizens from across the country and world joined in the
chorus of protest. Documentaries were made. People from all walks
of life sat on protest demonstrations and candle light vigils.
Womenfolk resorted to the extreme step of a “nude protest” to shame
the armed forces and the government.
The government
relented, but in its typical way of “setting up of a committee”. The
Prime Minister’s Office constituted the Justice B. P. Jeevan Reddy
Committee to look into the matter and explore the possibility of
substituting the AFSPA with a “more humane” Act. The Committee
submitted its report on
6 June 2005 and
recommended that the Act be repealed. Similarly the Administrative
Reforms Committee headed by Veerappan Moily also recommended on 26
June 2007 that the Act be repealed.
Earlier, in
February 2007, the United Nations Committee on the Elimination of
Racial Discrimination had also recommended that the Indian
Government immediate repeal the AFSPA. So far the federal and
Manipur governments have failed to meet many a promise made for
repeal of the Act. Even the Jeevan Reddy Committee’s report has not
officially been made public, though The Hindu newspaper
managed to leak its contents.
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The Act is
discriminatory no doubt and the alienation issues flowing from
the misuse of the provisions make it more symptomatic of the
malafide intent of the State. |
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Dr. Bimol
Akoijan, a researcher at the Centre for the Study of Developing
Societies, in the course of the recent conference in
Delhi, remarked
that “this Act is not an Act but legal fiction. Discussing public
interest litigation of civil societies, the Supreme Court of India,
accepts that the conditions are not “disturbed” and that “armed
rebellion does not constitute threat to national security”. And then
goes on to uphold the constitutional validity of the Act, which it
did in 1997.
Senior Editor of
the acclaimed Indian newspaper, The Hindu, Sidharth Vadarajan
pointed out that the new phenomenon of arming civilians in Manipur
is going to have serious repercussions. “It is a dangerous
experiment and all those engaged in armed resistance must keep away
from these non-state actors” he said. He also commented that the use
of National Security Act is yet another aspect which has not
received much attention as there are cases of people being charged
under sedition charges and then detained under NSA.
Ravi Himadri the
Director of The Othermedia outlined that the ill as a matter
of policy and governance. He said that “the larger policy of the
government of
India seems to
be about dealing with militarization. The state is unwilling to
have a peaceful dialogue with what it conceives as ‘small groups’,
for example the people living in Garo Hills. The law/army/ ministry
have a big influence on the ‘system’ which is why repealing the Act
is quiet improbable.”
“The Jeevan
Reddy Committee report has not been implemented clearly under army
influence.” He further said. He expressed the need to assess the
social and psychological trauma undergone by the people.
Going into the
question of institutionalizing the illegal methodologies adopted
under the statute, a member of the Justice Jeevan Reddy Committee
and renowned columnist, Sanjoy Hazarika, said that “one of the key
questions is the prolonged imposition of the Act. 50 years of
militarization is far too long and clearly exposes the lack of
resolve, insecurity and failure of the government of
India
in handling the political questions of the region. The Act must be
repealed and there is no further argument on it.” He further said
that, “A new set of legal structure is needed and mutual
understanding evolved to ease the problem and undo the damage done
to the Indian army which is seen as a villain of the State.”
A lady activist,
Ninglun Hanghal of the Indian Social Action Forum suggested that the
government of
India should
scrap the Act, atleast on an experimental basis and monitor the
results. She said that serious problems like unemployment may soon
spawn an era of social unrest. Pointing out at the other side of
the picture, she said that with an increase in the number of
insurgent groups, the problems have further escalated.
Like Sidharth
Vadarajan, the Coordinator of Reachout, Kshetrimayum Onil also
stressed upon the emerging problems which may set off as a result of
the arming of civilians. He said that “Already there are over 50,000
armed forces so where is the necessity to arm small pockets of
civilians. This shows complete irresponsibility of the government.
The neutrality of civilians will be weakened and it may degenerate
into “organized crime”. Urging the government to look at the
problem as a political issue, he said that there is need for a
solution through dialogue and not gun power. The Act is
discriminatory no doubt and the alienation issues flowing from the
misuse of the provisions make it more symptomatic of the malafide
intent of the State, he further said.
Though the saner
voices in India are becoming increasingly muted, it is satisfying to
note that a number of organizations, namely the National Alliance
of Peoples Movements, Asha Parivar , North East Dialogue Forum, Open
Space (Bangalore), People’s Watch, Drik India, MASUM, Jagori,
Secular Alliance for Harmony among Youths of Grassroots (SAHYOG),
Shwe Gas Campaign Committee, Human Rights Alert, Association for
Protection of Democratic Rights, North East Network, Human Rights
Forum (AP) supported the event which revived the demand for
annulment of the anti-people legislation.
To follow the UN
call of “All Human Rights for All” in this sixtieth year of the UN
Declaration for Human Rights, India will do well to recall the words
of Mary Robinson, the UN High Commissioner for Human Rights in her
report to the 58th Session of UN Human Rights Commission.
She had said, “An effective international strategy to counter
terrorism should use human rights as its unifying framework. The
suggestion that human rights violations are permissible in certain
circumstances is wrong. The essence of human rights is that human
life and dignity must not be compromised and that certain acts,
whether carried out by State or non-State actors, are never
justified no matter what the ends. International human rights and
humanitarian law define the boundaries of permissible political and
military conduct. A reckless approach towards human life and liberty
undermines counter-terrorism measures”.
A Sikh soldier
(name withheld), now in his eighties, who had served in the Indian
army some decades ago, upon reading of a report of the violations
under the Act, called up a political activist and said, “today, I am
ashamed of what I did as a soldier longtime back while serving in
Nagaland and Manipur.” I wish even
India says the
same.
Jagmohan Singh
is a political commentator based in Ludhiana. He may be contacted at
jsbigideas@gmail.com
28
May,
2008
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