AFSPA 1958 - A colonial law and its misuse

Jayanta Sharangthem *

Peaceful March for Save Democracy - Repeal AFSPA at Delhi in October, 2011 :: Pix - Save Democracy Repeal AFSPA Group

It gives armed forces a special power to maintain public order in disturbed areas. After independence, it was first applied to the North Eastern States.

Then what is disturbed areas ? Disturbed areas as indicated in the Bill means the Government either by State or Centre considers those areas to be disturbed by reasons of differences or disputed between members of different religious, racial, languages, groups, castes or communities.

BRIEF HISTORY OF AFSPA:

Firstly AFSPA like many other controversial laws, has a colonial origin. The AFSPA, first came as an ordinance, introduced by British Govt, the then Viceroy Linlithgow shaken by the massive scale of violence across the country to suppress the Quit India Movement launched by Mahatma Gandhi in 1942. Because after its launch, the movement became leaderless and turned violent at many places across the country.

Leaders like Mahatma Gandhi, Jawaharlal Nehru, VB Patel and others had been put behind the bars. Secondly, after Independence, these Ordinances were decided to continue and enacted as law by the Central Government under PM Jawaharlal Nehru to deal with the internal security situation which emerged due to the partition of India.

The Ordinances are-
1. The Bengal Disturb Areas (Special Powers of Armed Forces) Ordinance;
2. The Assam Disturb Areas (Special Powers of Armed Forces) Ordinance;
3. The East Bengal Disturb Areas (Special Powers of Armed Forces) Ordinance;
4. The United Provinces Disturb Areas (Special Powers of Armed Forces) Ordinance.

However, these ordinances were repeal in 1957. But a year later in 1958 the Naga insurgency forced the Central Govt to bring it back as Armed Forces Special Powers (Assam and Manipur) Act, 1958 and gradually it further extended in North Eastern States one after another.

The Naga National Council boycotted the first general election of 1952 and which later extended to a boycott of Government schools and officials because Nagas demanded Autonomy and Sovereignty of Nagaland from India as mentioned in Simon Commission.

In order to deal with this situation, the Government imposed the Assam Maintenance of Public Order Act in the Naga Hills in 1953 and intensified police action against the rebels. But the situation worsened, so the Govt deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act,1955.

Howerver, the Assam Rifles and the State police could not control the Naga rebellion instead the rebel Naga Nationalist Council (NNC) formed a parallel Government.

So the Central Govt imposed the Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 signed by the then President Dr Rajendra Prasad on 22nd May 1958 to suppress the uprising and violence caused due to insurgency in the NE States like tribal insurgency, Assam militant uprising, separate State demand, freedom movements or so called separatist movements and Naga insurgency under Phizo.

Let see the provisions/powers in the Act given to Armed forces like Army, Paramilary and Assam Rifles
1. Armed forces may shoot to kill or destroy on mere suspicion under Section 4 of the AFSPA Act.
2. Prohibit public gathering of five or more people.
3. May arrest any individual without warrant on reasonable suspicion.
4. Can enter and search any home/premises without warrant.
4. No prosecution or other legal proceeding shall be instituted against armed personnel acting under this Act.

Who can impose this draconian Act in the disturbed areas.

1. By Governor (after which Centre sends army for police aid)
2. By Central Government.

Because Central government can declare a particular area as disturbed under 1972 Amendment. Over and above, the Article 355 of the Constitution of India confers power to the Central Government to protect every State from internal disturbance.

Where and when did it apply ?

1. In disturbed areas where State Govt got the power to declare any part or whole that seems against Constitution or out of government control.

2. Assam disturbed areas which later become AFSPA was extended to Nagaland to suppress the Naga uprising armed group in 1955.

3. Manipur for insurgency control as it said.

4. Punjab and Chandigarh in 1983 in connection with Khalisthan movement which was withdrawn in 1997.

5. Similarly the Act was imposed in Jammu and Kashmir in 1990 to suppress the separatists.

6. Tripura in 1997 but was withdrawn in 2015 under Manik Sarkar.

Now let us digest the contradiction to this Act and human rights.

1. This Act is a violation of the Constitution and international convention.
2. Sec 4 (a) in which army can shoot to kill violates article 21 of our Constitution which gives right to life.
3. Sec 4 (b) of the Act where searching and arrest without warrant violates Article 21 the right to liberty of the Indian Constitution.
4. Dispersal of civil assembly by armed forces violates right to assembly of our constitution.
5. No judicial magistrate permission required while arresting violates article 22 of Indian Constitution. AFSPA violates various international convention such as Universal Declaration of Human Rights, International Convention of Civil and Political Right, Convention against torture, UN code of conduct of law enforcement officials, UN body of principles for protection of all persons under any form of detention.

Argument to this draconian Act

1. for the largest democratic country like India, have the citizens of these disturbed areas got real freedom even after India got independence from the British. Now ? Answer is a big No. It is somehow similar or slightly different from conventional martial law where army takes over like military junta in Myanmar and Kim Jong in North Korea or Hitler killed Jews in Germany. Still the philosophy or idea of this Act is similar somehow of that.

2. It is sometimes called necessary evil and dark side of our democracy and need to be repeal and should not be kept for so long.

3. This Act grants legal immunity to armed forces from inquiry in a Court of law or no prosecution from any wrong done under AFSPA.

4. This Act comes to force only when the situations are out of control/lose control temporarily for the prime motive of restoring normalcy and not imposed permanently, if implemented for a prolong period, it becomes a draconian Act.

5. Army is opposing the withdrawal of the said Act because they argue that removing the Act will demoralise the armed forces and see militants motivating locals.

6. Politicians begin to use for personal gain/or so called political blame game.

7. It creates fake encounter at the largest. Nearly 1,528 'innocent people' have died in extra judicial killing.

8. Not listening to the cry of the social activists, NGOs and victims families by the Governent but democracy says it is for the people, by the people and to the people like it says in the papers only.

9. No steps were taken even for reviewing AFSPA

10. Lastly let us see the suggestion as made by intellectuals and experts regarding this Act

1. Senior officers or trained responsible officers along with prior information from the local authority should lead the armed party instead of non-commissioned officers because guilty or cases made by these armed forces are closed only after dismissing the jawans /armed personnel who are non-responsible.

2 It is high time to rethink for the state and central govt in a democratic country like India that what is the duty of state police forces whose duty is to maintain internal security or civilian law and army whose duty is to defend aggression from external attack so, the army does not fall in internal matters or conventionally in this AFSPA 's scope of work and duty.

3. A grievance cell should be opened at Unit/Headquarters level so that the civilians can lodge complaints against the personnel if they so desire and the commanders should take necessary actions as deemed fit.

4. Another way is inclusion in Govt administration. Mizoram is an existing example. Here, Laldenga, who once was the leader of Rebel group Mizo National Front (MNF). The greatest success laid in the Central leadership under Rajiv Gandhi offering to make Laldenga the Chief Minister and that too succeeded.

So, involving insurgent leaders in electoral politics can be an effective way to deal with AFSPA as well. Another example is insurgent leader general Joto of Nagaland who later joined BSF as Commandant and ran a battalion in Naganad with his large militant group.

5. Next is development (in the sense of political development and economic development). Political development covers the forming of political party to participate in running Government and economic development in the sense that increasing smart city project, giving livelihoods, jobs and entrepreneurship programmes so that there is no uprising against the Government and so on.

6. Should have political will and people should have faith in democracy.

7. State Govt can also suggest whether the Act is required to be enforced or not. In Tripura, Govt under Manik Sarkar CPI state after recorded 84% in 2014 Lok Sabha election. Tripura showed the way by withdrawing AFSPA from the State after 18 years setting the example that State Govt great role in removing the Act