An introspection of roots of AFSPA 1958

Yangsorang Rongreisek *

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Series of severe ordinances called Armed Forces (Special Powers) Ordinances were promulgated in India during the Colonial Era. Likewise, series of Armed Forces Special Powers Acts were also enacted by the Indian Parliament granting special powers to the army and the Para-military forces in the country, especially in Jammu & Kashmir and the North-East Region of India at different stages when a region was declared as disturbed area.

The present writing dwells on how and why such ordinances were promulgated and acts enacted by the parliament at different point of time in brief. On 22 March 1942, the British govt sent Cripps’ Mission headed by a Senior Minister Sir Stafford Cripps to India to talk terms with the Indian political parties and secure their support in Britain’s war effort during WWII.

He was sent to India to negotiate an agreement with the nationalist Congress leaders who spoke for the majority Indians and Md Ali Jinnah and the Muslim League who spoke for the Muslim population. Cripps worked out to keep India loyal to the British war effort in exchange for a promise of elections and full-government once the war was over.

Cripps discussed the proposals, which he had drafted himself with the Indian leaders. The major political parties rejected his proposals, they were also unacceptable to the British Prime Minister, Winston Churchill; no middle way was found and the mission failed miserably. The Congress moved towards the Quit India Movement whereby it refused to cooperate in the war effort of the British government.

It was also called the August Movement launched at the Bombay session of All India Congress Committee by Gandhiji on 8 August 1942 demanding an end to British Rule in India. Gandhiji made a call to Do or Die in his Quit India Speech delivered in Bombay at the Gowalia Tank Maidan. The AICC launched a mass protest what Gandhiji called An Orderly British Withdrawal from Indian soil following the failure of the Cripp’s Mission to secure full Indian cooperation and support for their efforts during WWII.

According to Prof.John F.Riddick of Michigan University and Author of The History of British India, from 9 August 1942 to 22 September 1942, the Quit India Movement attacked 550 offices, 250 Railway Stations, damaged many rail lines, destroyed 70 police stations, and burned or damaged 85 other govt buildings.

There were about 2500 instances of telegraph wires being cut. The greatest level of violence occurred in Bihar. In order to suppress the movement, an ordinance was promulgated on 15 August 1942 known as The Armed Forces Special Powers Ordinance of 1942 to put down the Quit India Movement. Modelled on these lines, four ordinances were promulgated for the erstwhile Bengal, East Bengal, United Province and Assam in different years which emerged due to the partition of India to deal with the internal security situation in the country in 1947.

Thus, these ordinances became the roots of all the Armed Forces Special Powers Acts enacted by the Indian Parliament. In 1951, the Naga National Council called a boycott of the first general election of 1952 which later extended to a boycott of government schools and officials. In order to deal with the situation, the Assam govt imposed the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953 and intensified police action against the rebels.

When the situation went out of control, Assam Riffles were deployed in the Naga Hills, then part of Assam and the Assam Disturbed Areas Act was enacted in 1955 providing a legal framework for the paramilitary forces and the armed state police to combat insurgency in the region. But the Assam Rifles and the state armed police could not contain the Naga rebellion. The rebel Naga National Council (NNC) formed a parallel government called the Federal Govt of Nagaland (FGN) on 23 March 1956.

In a quagmire, Dr.Rajendra Prasad, the then President of India promulgated The Armed Forces(Assam & Manipur) Special Powers Ordinance, 1958 on 22 May 1958. Later, it was replaced by the Armed Forces (Assam & Manipur) Special Powers Act on 11 September 1958. The Act empowered only the Governors of the States and the Administrators of the Union Territories to declare areas in the concerned State or the UT as disturbed.

The reason for conferring such a power as per Objects and Reasons appended to the Bill was that keeping in view the duty of the Union under Article 355 of the Constitution of India, interalia, to protect every State against internal disturbance, it was considered desirable that the Central govt should also have power to declare areas as disturbed, to enable its armed forces to exercise the Special Powers. In the following decades the Act spread, one by one, to the other Seven Sister States in India’s North-East.

At present it is in force in Assam, Manipur, Meghalaya, Nagaland, Arunachal Pradesh and Mizoram excluding Tripura, Imphal Municipal Council Areas. In the recent past, the Tripura State Govt decided to withdraw the cruel ACT citing significant reduction in the extent of terrorist activities in the state. In addition, the words “The Armed Forces (Assam&Manipur) Special Powers Act, 1958 was substituted by Armed Forces (Special Powers) Act, 1958, getting the acronym of AFSPA, 1958.

Another one passed in 1983 and applicable to Punjab and Chandigarh was withdrawn in 1997, roughly 14 years after it came to force. An Act passed in 1990 was applied to Jammu and Kashmir and has been in force since.

Some of the extremely cruel and severe clauses of the AFSPA are–in an area that is proclaimed as “disturbed”, an officer of the armed forces has power to fire upon or use other kinds of force even if it causes death against person who is acting against law or order in the disturbed area for the maintenance of public order, destroy any arms dump, hide-outs, arrest without a warrant anyone who has committed cognizable offences or is reasonably suspected of having done so and may use force if needed for the arrest.

Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law nor is the government’s judgement on why an area is found to be disturbed subject to judicial review.

The Acts have received wide criticism from several sections for alleged concerns about human rights violations in the regions of its enforcement alleged to have happened. In a landmark ruling on 8 July 2016, the Supreme Court of India ended the immunity of the armed forces from prosecution under AFSPA, saying in an 85-page judgement, “It does not matter whether the aggressor is a common person or a militant or a terrorist, nor does it matter whether the aggressor is a common person or the state. The law is the same for both and is equally applicable to both.

This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties. Here, United Nations View is that when India presented its second periodic report to the United Nations Human Rights Committee in 1991, members of the UNHRC asked numerous questions about the validity of the AFSPA.

They questioned the constitutionality of the AFSPA under the Indian Law and asked how it could be justified in the light of Article 4 of the International Covenant on Civil and Political Rights (ICCPR). On 23 March 2009, UN Commissioner for Human Rights Mrs.Navanethem Pillay also known as Navi Pillay, a South African jurist asked India to repeal the AFSPA. She termed the law as outdated and colonial era law that breached contemporary international human rights standards.

Again, on 31 March 2012, the UN asked India to revoke AFSPA saying it had no place in Indian democracy. Christof Heyns, UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions said “During my visit to Kashmir, AFSPA was described to me as “hated” and “draconian” violating International Law. The same act has been criticised by Human Rights Watch as a tool of state abuse, oppression and discrimination.

The South Asian Human Rights Documentations Centre argued that the government’s call for increased force was part of the problem. “This reasoning exemplified the vicious cycle which had been instituted in the North-East India to the AFSPA.

The use of AFSPA pushed the demand for more autonomy, giving the people of the North-East more reasons to want to secede from a state which enacted such powers and the agitation which ensued continued to justify the use of the AFSPA from the point of view of the Indian Govt”—The South Asian Human Rights Documentation Centre.

Besides, there had been several claims of disappearances by the police or the army in Kashmir by several human rights organizations. The Amnesty International condemned human rights abuses in Kashmir by police such as extra-judicial executions, disappearances, beatings, torture and sexual humiliations against hundreds of detainees, the AFSPA which provided impunity for human rights abuses and fuelled cycle of violence.

The Act granted the military wide range of powers of arrest, the right to shoot to kill, and to occupy or destroy property in counterinsurgency operations. Indian officials argued that troops needed such powers because the army was only deployed when national security was at serious risk from armed combatants. Such circumstances, they said, called for extraordinary measures. Justice Jeevan Reddy Commission recommended to repeal AFSPA as the Act was a symbol of hate, oppression and instrument of high handedness.

The commission submitted its report on 6 June 2005 after 10 years of Govt of India’s rejection of the recommendation to repeal the dreaded AFSPA. Next, a high power commission headed by the retired Supreme Court judge, N.Santosh Hegde was constituted in January 2013 to probe six encounter deaths in Manipur. The committee, comprising former Supreme Court Judge N.S.Hegde, ex-CEC J.M.Lyngdoh and a police officer said in its report that the probe showed that none of the victims had any criminal records. The judicial commission set up by the Supreme Court tried to make the controversial AFSPA more humane and the security forces more accountable.

The committee suggested fixing a time frame of 3 months for the central govt to decide whether to prosecute security personnel engaged in extrajudicial killings or unruly behaviour in insurgency-hit regions. The commission also noted that AFSPA was an impediment to achieve peace in regions such as Jammu and Kashmir and the North-East. As the last stroke, the commission further said that the law needed to be reviewed every six months to see whether its implementation was actually necessary in states where it was being enforced.

About Section 6 of the Act guarantying protection against prosecution to the armed forces, the report said: “It is not that no action can be taken at all.

Action can be taken but with prior sanction of the Central Govt of India”. The dictum shows that States of the Indian Union have no voice in the matter and cannot act at all. What is leant from the above dictum is that whether the AFSPA 1958 is strengthened or reviewed, it is the same thing unless it is completely repealed or withdrawn to build up the spirit of unity in diversity candidly.

Now, in this election season in the country, the BJP is saying that it will strengthen the AFSPA and give free hands to the armed forces if the party is voted back to power and the Congress manifesto is saying it will review the Act if its party is given the mandate to form the govt at the centre.

There is no gainsaying, and the people of Jammu & Kashmir and the whole of India’s NE Region will continue to bear the brunt of the Draconian Law for many more years to come. Armed Forces, using vulgar languages, will roam through freely in the minority belts for checking and frisking activities—much to the chagrin of the people anywhere even if the Act is reviewed or modified.

Let the general election held for the 17th Lok Sabha be for the welfare of the people and all round development of each state in the country.

Let no man or woman dream of gaining power only or individual image building. The fact remains that the beauty of Indian democracy has been blackened for ages due to the most controversial Act called the AFSPA. So, the British Legacy called the Armed Forces (Special Powers) Act, 1958 should go in the foreseeable future.

Victory to all democrats regardless of party allegiance!