The naked truth about the AFSPA 1958
The AFSPA gives the armed forces wide and blanket powers to shoot to kill (sec. 4,a), arrest (sec. 4,c) and search (sec. 4,d) without a warrant in a disturbed area in aid of the civil power. The greatest outrage of the Act is sec. 4(a) depriving life on mere suspicion in order to maintain public order.
What constitutes “mere suspicion” and “public order” is nowhere mentioned in the Act. This power to shoot to kill is not given only to a private jawan. But in reality, every member of the armed forces exercise this power. Sec.4 (a) violates Article 21 of the Indian constitution which provides "No person shall be deprived of his life and personal liberty except according to procedure established by law".
It also violates Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) and Article 3 of the Universal Declaration of Human Rights (UDHR) of which India is a party. Sec.4 (a) is against procedure established by law. " Procedure established by law" has come to mean just, fair and reasonable since the case of Maneka Gandhi v Union of India (AIR 1978 SC 597).
Because it takes away or kills 'life' arbitrarily on mere suspicion which does not have any lawful basis or procedure at all. For an offence which is only murder, the punishment is death or life imprisonment (Section 302 of the Indian Penal Code). Murder is nowhere listed as an offence in sec. 4(a).
Yet, death is the only answer or Sec .4(a) is synonymous with death. It is totally ridiculous and absurd. The AFSPA is the “butcher law” but not a law in the true sense of the term. Because “People’s Good is the Highest Law”, stated the Roman lawyer, Cicero.
The South Asian Human Rights Documentation Centre (SAHRDC) rightly observes "this provision give broad license to extra-judicially execute innocent and suspected persons under the disguise of maintaining law and order. It violates every norms of a civilized society". Sec.4 (a) is a sheer negation and denial of the fore-most fundamental right to life.
Section 5 of the AFSPA violates Article 22 of the constitution by permitting the armed forces to detain persons arrested under the Act for an unspecified period of time without judicial review. Section 6 violates Article 32 of the constitution by denying legal prosecution against the armed forces without the previous sanction of the central government.
The existence of the draconian AFSPA poses a serious setback and challenge to the human rights jurisprudence, advocates, defenders and activists as well. It was hundred per cent colonial instrument used for legitimization and continuation of colonialism (Sanajaoba, N. 2000).
The AFSPA undermines the very foundations of democracy, justice and human rights. Basic human rights are curtailed and fundamental freedoms denied. It shook the conscience of all humanity.
The infamous killings and massacres like Malom, RIMS, Heirangoithong, etc. among hundred others are all glaring instances showing that the armed forces blatantly violates the basic tenets of human rights and fundamental freedoms systematically and persistently, under the AFSPA regime in the region. There is no way for the Act to stay for a day longer in the statute book of a civilized legal system.
The peoples of the NE region has been suffering the barbarious oppression under the AFSPA rule. Their non-derogable rights are murdered and sacrificed at the cost of the so-called larger national interests and security of India. The victims of human rights violations are left with no remedy but to their fate alone. Indeed, AFSPA has defeated humanity in this region.
The Rule of law is dead in the region. State of undeclared emergency prevails and right to life is extremely uncertain. The military rules the region. Their whims and doubtful 'opinions' rule over the rule of law. The AFSPA denies equality before law. Not a single armed forces personnel has been punished for blatant violations of human rights, reports the Amnesty International.
Thus, there is no remedy for the victims of the abuse practices and mockingly, for those who-would-be in future. Justice is ultimately assassinated in the poor NE region.
To be continued....
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* The writer is a final year student of LLB from Bharati Vidyapeeth University, Pune and can be contacted at malem(dot)mangal(at)gmail(dot)com .
This article was webcasted on August 10, 2007 .
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