ABSTRACT:

The Prime Minister of India has indicated on December 19, 2006 in his meeting with the Political Parties Forum in parliament house the possibility of scrapping the AFSPA if there is a consensus among the political parties. The consensus had already emerged long back which he failed to take not of, while unneccesarily insisting on trivial amendments of the black law..

State parties including India is under International and national obligations under Article 2 of the International Covenant on Civil and Political Rights (ICCPR) to enforce the ICCPR in the complete sense of the term.

By invoking the AFSPA, 1958 for half century in the NSGT of NE region, India’s union government has consistently not complied with the essential public emergency provisions of Article 4 of the ICCPR. The repository of Rule of law – Supreme Court in its 1997 verdict has overlooked possibly not due to ignorance of the law, both Articles 2 and 4 of the ICCPR.

India has to mend its ways. Justice Jeevan Reddy report, 2005 strongly recommends the total repeal of the infamous Act; however, the report suggests incorporation of the some of the provisions to an existing Act- UPA,2002- for invocation in the country as a whole.

The AFSPA should be repealed as per report. The UPA amendment could be done after nationwide debate only. The report does not indicate any further justification of extrajudicial executions and termination of impunity.

The Prime Minister of India would like to amend some provisions and not to repeal the black law by overlooking Reddy report to repeal the black law [his statement in Imphal on 3 December, 2006 - Telegraph daily, Guwahati - see front page headline- Human garb for 'black law'.]

Lok Sabha Speaker Mr Somnath Chatterjee in the zero hour notice in the lower house of the Parliament demanded on 11th December 2006 that the AFSPA be thrown out as it is repressive. The major opposition parties of India also took the same stand for throwing out the dirty law.

The GOC of Eastern command of the Indian army in his statement on 16th December, 2006 at Kolkata insisted that the black law, with certain amendment, has to stay; he did not explain why he wanted to continue extrajudicial executions and torture of the citizens in the NE region in blatant transgression of rule of law and offer immunity to extrajudicial murderers in his folk.

He did not explain why he remained silent about his government not signing the ICC Rome treaty. In the event of his government's signing the Rome treaty, he in his individual person, has to be prosecuted and tried by the ICC under the rule of law for commission of heinous crimes in the NE region

A LAW THAT GUARANTEES EXTRA-JUDICIAL EXECUTION

The extra-judicial executions of innocent civilian populace and other forms of naked human rights violations remain a fact of life in the North-Eastern states in India for the last five decades. Two contentious stances are being advanced by the state, which has rationalized the enactment and enforcement of demonical law like the AFSPA 1958 (Armed Forces Special Powers Act 1958 - AFSPA, hereafter), and by the defenders of human rights, who not only defy the apparent legitimacy of such a law, but also raise the politico-historical basis of the upsurges, that characterize the North-Eastern life.

The apex court upheld the statute on 27 November, 1997, by overlooking the gross human rights violations since 1958, whereas it could have struck down the black law on the grounds of its incompatibility with the Rule of Law and the ICCPR, 1966 to which India is a State Party. Justice Jeevan Reddy report 2005( report hereafter) observes:

"{the} Act,for whatever reason,has become a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness."
[Report,p.75]
" The Court does not-it is not supposed to- pronounce upon the wisdom or the necessity of such an enactment."
[Report p.74]

Although the armed forces donot favour repeal of the black law- the AFSPA, the report has recorded the assessment of the armed forces about the political consequences of the AFSPA ;
"Army:...(a) The insurgency situation in the north- east has worsened since the AFSPA has been applied in the 1950s.The insurgent groups have greatly increased. Their cadres, weapons,tactical capabilities have expanded and improved immediately." [Report.p. 62]

Apparently, the black law has acted as surrogate mother of increasingly proliferating belligerency and insurgency. The deployment of forces has been reenunciated by the government of India.
"Ministry of Home affairs: In its presentation to the Committee, the MHA stated that Armed Forces and other forces of the centre would be progressively withdrawn from the north-east,..."[Report p. 64]

An impartial analysis of these official statements of the respectable national institutions of India reveals that they remain rhetorical at best.

Indian state, unlike the Indian nationhood is a nascent British-created entity, which has passed through diverse - and even, non-complimentary historical experiences. A nation-in-the-making that India is, Manipur state and Tripura state have been brought to the fold of the nascent state after two years of Indian independence ; the other states of the region remained parts of Assam, which on its part, joined the British Indian mainstream in 1826. Mainstream historians had misrepresented the acquired territories of the NE region as state succession from the British colonial power.

In political terms, the sub-terranean faultlines are cracking up, and Indian state persists in quick-fixing the deep-structured NSGT faultlines with the help of the powerful Indian army and state repression, which would loose legitimacy without having demoniacal laws like the AFSPA, and the Punjab Security Act 1953. Occasional patchwork and cosmetic reforms apart, the deep-structured political contradictions are shelved beyond the reach of bold contradictions are shelved beyond the reach of bold and visionary stroke of statesmanship, which itself is a missing word in the colonial legacy.

The tangible political repercussions of the invocation of the AFSPA demonstrate the following phenomena:

Firstly, the correlation of the demoniacal law with corollary of such a law is found in subsequent political fallout. The AFSPA's predecessor - the Armed Forces Special Powers Ordinance 1942, had been enacted in order to neutralize quit-India movement.

It was hundred percent a colonial instrument, used for legitimization and continuation of colonialism. The British colonial Armed Forces(Special Powers) Ordinance, 1942 promulgated byViceroy Linlithgow[ sic’self style as Lord]had provided: " 2(1)Any officer not below the rank of captain in His Majesty's Military Force...,require any personnel under his command to use force as may be a necessary, even to the causing of death, against any person..." The Indian parliament had acted as Linlithgow –II in the North Eastern region for half a century. Nearly 30 nation-states are awaiting for independence in the 21st century notwithstanding states repression.

The 1942 demoniacal ordinance crafted by the British colonialists, among others, had expedited and facilitated the passage of Indian Independence Act, 1947. The 1958 law inherits the same powerful political potency.

Secondly, the AFSPA in 1958 has been enacted in 1958 in order to quell the ethnic uprising in Naga Hills in Assam in 1958. After four decades, like a nuclear chain-reaction, the invocation of the black law in a small range of hills spread over the conflagration like domino effect in all the seven states.

It has the potency of flaring-up politically sensitive issues like prairie-fire.

Two-hour Summary Parliamentary Debate

Concentration camp theory approved in the house

Inspite of referring the bill to a JOINT PARLIAMENTARY COMMITTEE to examine the statute and discussing the same in details, on 18th August,1958, the AFSPA had been adopted after two hour-long summary debate by the parliament. Manipur MP Sri L. Achaw Singh argued against the bill, "This is a black law... How can we imagine that these military officers should be allowed to shoot to kill and without warrant arrest and search? This ia a lawless law."
[Lob Sabha Debates vol.XVIII,1958-hereafter LSD only,p. 1441]

Manipur hill MP Rungsung Suisa argued against the AFSPA, "All these Ordinances and sending of Armed Forces will not solve the problem."
[LSD,p. 1447]

MP Sri Warior(Trichur) opposed the bill - "The whole of Assam and Manipur is going to come under Martial law though the Martial Law and an emergency are not declared."
[LSD,p1434]

In the same vein, MP Sri Mahanty opposed the bill-, "What I am trying to submit is that this is a martial law... It is being sought to be introduced in this House as a most innocuous measure.[LSD.p1424];

He further argued, "...But, we do not want a free India with barbed wires and concentration camps, where the Havildars can shoot at sight any man."
[LSD,p.1426].

However, brute majoritarianism of the ruling Congress got the bill passed without elaborate debate in the parliament in just two hours. Human rights had to be violated for half a century in the NE region ruthlessly and mercilessly following the passage of the concentration camp law.

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