This article is written by SHUBHAM RAJ (RNB Global University, )Bikaner
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On December 6, 2021 14 civilians in Nagaland were killed in the botched up army operation. Soldiers opened fire on a truck carrying coal miners who were returning to their home after work. Locals were claiming that the fire was unprovoked and the soldiers opened fire without any warnings. Soldiers were claiming that the miners did not cooperate. According to official statement of Army it was a ‘case of mistaken identity’ and soldiers were responding only to the credible intelligence inputs. This incident again raises question about unlimited power given to army personnel according to controversial Armed Forces Special Powers Act (AFSPA). After this incident demand for AFSPA repeal again gains momentum. Chief Minister of Nagaland, Meghalaya and many opposition parties in north-east demand for the repeal for this draconian law.
History of AFSPA
AFSPA gives Indian armed forces special powers to restore the authority of state in disturbed regions. AFSPA protects the armed forces during high-risk operation to counter militancy or insurgency to restore normalcy. AFSPA was first introduced by British government as an ordinance in 1942 to suppress the Quit India Movement launched by Mahatma Gandhi. During partition the central government invoke AFSPA to deal with the internal security. Assam Government used AFSPA in 1953 under Assam Maintenance of Public Order Act in Naga Hills. At that time Naga National Council (NNC) were demanding independence from India. The situation could not be contained and in March 1956 the rebel Naga Nationalist Council (NNC) formed a parallel government called The Federal Government of Nagaland. To counter this, the Armed Forces Special Powers Ordinance 1958 was promulgated. Later it was replaced with the Armed Forces (Assam and Manipur) Special Powers Act, 1958, which allows state governors and administrators of Union Territories to declare the entire state or any part of it as disturbed.
In1958, the then Home Minister of India GB Pant had enforced AFSPA as an ordinance to replace the original ordinance of 1942, as a short term measure. But a law that was supposed to be temporary has been around for more than 60 years.
Why AFSPA is considered draconian?
The Armed Force (Special Powers) Act, 1958, provides certain special powers to the member of armed forces in disturbed areas of Arunachal Pradesh, Tripura, Meghalaya, Assam, Nagaland and Manipur. In reality the power given to the armed forces according to this act are unlimited and unbridled. According to section 4(a) of this act, armed forces only on the basis of suspicion can fire upon any one even to cause death if he thinks it is necessary to maintain public order or if he thinks that anyone is acting on the contravention of the law in the force for time being. He can warn them only if the thinks it is necessary. According to section 4(d) of this act armed forces only on the basis of suspicion without any warranty can enter and search any premises to make arrest and can also can also use force if necessary. Generally the law is based on the proof but this act gave armed forces to anything only on the suspicion. Even if the armed forced were wrong in their conduct no prosecution, suit or other legal proceeding can be instituted against such person without the sanction of central government. The sanction of central government to conduct any legal proceedings against armed forces deployed in disturbed area very also very few. So, this act gives armed forces immense power without any accountability. This is the reason that made this law draconian. The proverbial saying ‘power corrupts; absolute power corrupts absolutely’ perfectly suits this act.
Current Situation in North-East
AFSPA’s jurisdiction is all over northeast but it is implemented in only in the areas that are disturbed according to Section 3 of AFSPA. Currently AFSPA is implemented in the some areas of Nagaland, Assam, Manipur and Arunachal Pradesh. In Arunachal Pradesh AFSPA was restricted in 2018 and now imposed only in tense parts of Arunachal Pradesh like Arunachal- Assam border. In 2015 AFSPA was withdrawn from Tripura and in 2018 Meghalaya revoked it. According to the Union Home Ministry data Insurgency related incidents in the northeast states dipped by 80% and civilian deaths by 99% in 2020 compared to 2014. All the groups responsible for insurgency or militancy have either disbanded themselves, made deal with government to ceasefire or have been killed.
Current Situation in Kashmir
In Kashmir also AFSPA was invoked in 1990s as a means to fight terrorism. But in Kashmir also armed forces have repeatedly misused this law because there is no consequences due to wrong actions. Until 2018, Mehbooba Mufti state government in Jammu & Kashmir have sent 50 cases for prosecution sanction against the armed forces personnel under AFSPA, 1990. However, the Union government denied the permission in all the cases. Since the abrogation of Article 370 on August 9, 2019, the government of Jammu and Kashmir hasn’t sent a single case involving the army for sanction.
Consequences of AFSPA
Due to the immunity provided by AFSPA to the armed forces, they in many instances exceed their power and act in a way that cause violation of human rights. Malom Massacre is one of them. In November 2000, 10 civilians were gunned down by the 8th Assam Rifles at MalomMakhaLeikai, near Imphal’sTulihal airport. The troops claimed that there was an encounter underway, after the convoy had come under attack from extremists, the Manipur High Court observed that no such incident were reported and the victims families were given compensation. On July18, 2020 the armed forces killed three Kashmiri labourers including one minor. The armed forces alleged that they received inputs about the presence of militants in the Sophian district and hence carried out the operation. However the families of the victims confirmed that they are from Rajouri district and were innocent labourers and not militants. Medical report of deceased confirmed the same.
A 2016 petition by the Extrajudicial Executions Victim Families Association claims that around 1528 such executions were carried out in just Manipur by the police and security forces. The series of disappearance of Kashmiri man have given birth to the new concept of half-widows. It is believed that the mass graves that have been found all over Kashmir contain the bodies of these disappeared men. Besides this, rape as a weapon of war used by security forces to humiliate and intimidate civilians routinely goes unpunished. In Manipur, an intense agitation was launched by civil society after the death of Manorama Devi. She was raped and murdered, allegedly by a group of Assam Rifles men. These are some of many instances were armed forces misused their powers and only in few cases they were punished, cases that were highlighted in media.
Do we really need AFSPA?
The gross human rights violations brought about by AFSPA have been admitted by governments. Laws like AFSPA should only be used in the emergency situation. Many political parties at the centre and in the states, including Congress, the BJP and some regional parties have promised the withdrawal of AFSPA in their manifestos. Yet, it survives through time.
The Jeevan Reddy Committee formed in 2004 had recommended a complete repeal of the law. The body said “The Act is a symbol of hate, oppression and an instrument of high handedness.”
In 2016, the Supreme Court judgment clarified that the notion that the act provides a free hand to security forces is flawed. In1991, members of the UNHRC asked various questions about the validity of this Act. They questioned the constitutionality of the Act under the country’s law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR. UN commissioner for Human Rights asked India to repeal the AFSPA. She termed the law “dated and colonial-era law that breaches contemporary international human rights standards.
The Nagaland Legislative assembly also passed a resolution unanimously demanding centre to repeal the Armed Forces Special Powers Act, 1958 from North East specifically from Nagaland. So, the appeal to repeal the law is from everywhere and there is not much sense to keep this law in function in a free democracy. It should not matter whether the victim was a common individual or a militant, nor does it matter whether the aggressor was an ordinary person or the state. The law should be the same for both. The AFSPA is not just a gross violation of human rights but it is also against the rule of law.