Beating the Good, Bad and Ugly AFSPA to Death
Why is it not dying?
- Part 1 -

Puyam Nongdrei *

Peace Rally at Imphal observing the signing of AFSPA in 1958 on 11 September 2011 :: Pix - Amarjit Longjam

The struggle against Armed Forces Special Powers Act (AFSPA) has reached a point which will determine its future. There have been many committees recommending its repeal or amendment to meet the human rights standards. Many human rights groups have criticized it. Many ex-bureaucrats and ex-armed forces chiefs are attacking this act telling that they are also human beings who understand the suffering of other fellow beings under this black law.

Some say AFSPA is good while others say it is ugly or bad. The campaign against this legislation has reached the United Nations Human Rights Council and many countries have spoken against it. However, this piece of legislation borrowed by Indian leaders from the British colonial administration remains kicking till now.

As many are now targeting AFSPA, this legislation tarnishing the image of democracy can no longer be kept alive. Why? Its further existence will be like sailing against the course of history. What about militaristic approach of India Government? Repealing or reviewing AFSPA will not necessarily bring an end to militarization and human rights violations until and unless there is a serious engagement to find a political solution through political means as recommended by the UN Human Rights Committee in July 1997. Or, will Government of India opt for Sri Lankan or Myanmar model to end the conflict situation?

For those fighting against AFSPA, the recommendations of the Jeevan Reddy Committee have reached the Cabinet Committee on Security (CCS) where consultation with the 'major stakeholder' that is the army is long pending. CCS is headed by the Prime Minister and comprises of ministers of home, defence, external affairs and finance, National Security Advisor, Chiefs of Army, Air Force, Navy, Intelligence Bureau (IB) and Research and Analysis Wing (RAW).

In addition, the Second Administrative Reforms Commission in its fifth Report of 2007 also recommended the repeal of the Act. Attacking AFSPA, the Justice Jagdish Sharan Verma committee which was instituted by Government of India in the wake of a brutal rape incident that happened in New Delhi has made another recommendation in regard to amending AFSPA.

In addition, the Supreme Court judgment on AFSPA on 27 November 1997 following the writ petition filed by the Naga People's Movement for Human Rights is another important document on AFSPA. Former Chief Justice of India, Jagdish Sharan Verma (March 25, 1997-January 18, 1998) was a member of the bench when the apex court declared the judgment on AFSPA on 27 November 1997.

The recommendation of the committee headed by J.S. Verma to review provision of AFSPA to prosecute armed forces personnel exercising AFSPA accused of sexual crimes without any Central sanction carries weight against AFSPA. Recently, President of India has promulgated the Criminal Law (Amendment) Ordinance 2013 on 3 February without incorporating the necessary amendment to AFSPA to do away with the sanction which is required to prosecute armed forces personnel accused of sexual violence.

Following attacks from civil society groups, Finance Minister Chidambaram heading the Group of Ministers on Media has stated that some of the recommendations including one on amending AFSPA have not been incorporated so far because of 'far-reaching implications' which required more consultations and deliberations to meet acceptance of the 'stakeholders concerned'.

Genesis of AFSPA - The Colonial Legacy

Understanding AFSPA demands knowing the birth of this legislation during the British colonial era. After the failure of the Cripps Mission, Mahatma Gandhi started his campaign for 'orderly British withdrawal' from India in late April 1942. On 14 July 1942, the Congress Working Committee took a resolution demanding withdrawal of the British power from India. Following this, the All India Congress Committee meeting at Bombay on 8 August approved and endorsed the resolution of the Working Committee. The British power was fighting against the Axis powers on the side of the Allied powers during this time.

The arrest of Gandhi and Congress Working Committee members on 9 August and the ban put on the All India Congress Committee and the Provincial Congress Committee was soon followed by numerous acts of violence and breakdown of government machinery. Severe repressive measures were taken to control the situation in British India as Japan had joined the WWII on the side of the Axis Power causing concerns to the British establishments.

As a result of this development, the Armed Forces Special Powers Ordinance was enacted on 15 August 1942 to take care of the emergency situation which necessitated conferment of certain special powers upon certain officers of the armed forces. This was the birth of AFSPA on earth. It was nothing but a brainchild of the British Indian colonial rule which wanted to control the breakdown of government machinery during the 'Quit India' movement.

Many Indians suffered under this legislation as the ordinance was to serve the British interests against the Quit India movement launched by Indian nationalist leaders. Did Mahatma Gandhi like Armed Forces Special Powers Ordinance, 1942? The colonial legacy of AFSPA is something that defines Government of India's mentality and its policy towards North East India and Jammu & Kashmir.

When this particular legislation re-surfaced in the Parliament of India in 1958, the then Minister of Home Affairs, G. B. Pant said that AFSPA is a 'very simple measure' which 'only seeks to protect the steps that the armed forces might have to take in the disturbed areas.' He was right when he said that the act was meant to 'protect the steps' of the armed forces which not necessarily exclude extrajudicial killing, torture and rape.

It comes out that AFSPA is not a simple measure because it violates the right to life which is an inalienable right of every human being on earth. However, it continues to 'protect the steps' taken by the empowered armed forces personnel operating in the disturbed areas as 'no prosecution, suit or other legal proceeding' can never be instituted without the previous sanction of the Central Government. How many times sanctions have been given by the Central Government to institute any such legal proceeding against accused armed forces personnel ? What are the logical conclusions of such proceedings made?

We Had Leaders Who Opposed AFSPA

During the Parliamentary debate on AFSPA, the then MP of Inner Manipur Laishram Achaw Singh made strong points against the imposition of such an anti-democratic measure which he termed as 'a lawless law'. He pointed out the operation of armed forces in the hill sub-divisions of Manipur, especially in the sub-division of Tamenglong besides raising issues such as occupation of the village churches in these areas, rapes and harassment meted out to the villagers in Naga Hills (now Nagaland), North Cachar and Mikir hills districts (in Assam). He also touched upon the negative policy of the government citing ill-treatment of A.Z. Phizo's family in Shillong.

Late MP Laishram Achaw stood up and faced the policy of the India government representing not the Meetei community alone but spoke on behalf of those people who were affected by the imposition of this black law. At the same time, the Outer Manipur MP, Rungsung Suisa, correctly pointed out the fact that 'a soldier is trained in the art of killing and destruction.'

It is because the armed forces of a country are meant to fight against external aggression where they kill and destroy enemy positions. Their constructive services are to be delivered under certain code of conduct to aid the civil administration for a limited time but not to turn into a parasite attacking the smooth functioning of the civil administration.

Late MPs Laishram Achaw and Rungsung Suisa stood firmly and said 'AFSPA is bad'. Now, we don't have leaders like L. Achaw in the Parliament who can articulate the problems created by it and the sufferings faced by the people of Manipur and the North East as a whole under this act. There may be one or two who utter few words now and then to please the people in the Parliament whenever people organize mass movements in the aftermath of a rape incident or an extrajudicial execution.

What is lacking on the part of our representatives is the lack of a serious approach to claim a democratic space. What is more shocking is, these representatives are living in the twenty-first century without doing much when many human rights bodies including the UN Human Rights Council and representatives of many foreign countries openly criticize this hated legislation with a colonial legacy.

Incidents We Can Never Forget

One can sometimes get confused thinking whether the armed forces are aiding the civil administration or is it the other way around? There are instances which show how AFSPA brought the elected government on its knees. The best example one can cite here is the 'Operation Bluebird' (July 1987) at Oinam and some other neighbouring villages in Senapati district in July 1987. The incidents revolving around the military operation and other incidents make it clear that the armed forces exercising AFSPA are more powerful than the State Government with the blessing from the Central Government.

Another very touching story related to AFSPA was the rape of Rose Tangkhul of Ngaprum Khullen, Ukhrul by the BSF personnel on 4 March 1974. The suicide note of Rose was translated and later published in 'Bharatki Loilam Manipur' by Pan Manipur Youth League in 1993. What had happened to the CRPF personnel involved in the Heiranggoithong massacre in March 1984?

We have the Langjing incident (1980), Kachai incident (April 1991), Tera Keithel incident (March 1993), RIMS killing (January 1995), Malom massacre (November 2000), Khuga Dam site incident (December 2005) besides many other isolated cases of rapes and brutal killings without accountability. We can never forget the brutal rape and murder of Thangjam Manorama on 11 July 2004 which sparked a months-long mass protest movement in Manipur and elsewhere.

All these brutal massacres and isolated cases of human rights violations together tell something about the attitude of the New Delhi towards the people of North East region. Despite many complaints about gross human right violation, their stone walling position over repealing AFSPA is something one has to understand beyond the Constitution, statute book and even the established treaty bodies. It is about dignity of life and living as human beings as others do.

The story is about some section of the people suffering under the brute force of the state for decades. It is the right time that the Supreme Court of India answer to many of the questions raised by such incidents and cases of inhumane practices in the name of national security in the post-1997 judgment period. The twin PILs filed by Dr. Th. Suresh Singh and EEVFAM have to push the button so that Supreme Court learns whether the "Dos and Don'ts" are actually helping the situation or not.

To be continued ...

References

• Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958 or Jeevan Reddy Committee Report, Government of India, Ministry of Home Affairs, June 6, 2005.
• Report of the Committee on Amendments to Criminal Law or Justice J.S. Verma Committee Report, January 23, 2013; Full Report available here
• Petition to Supreme Court on Extrajudicial Executions in Manipur, 1 October 2012, available here
• Supreme Court order on petitions filed by EEVFAM and Dr. Th. Suresh Singh, January 4, 2013; here.
• The Armed Forces (Special Powers) Act, 1958 in Manipur and other states of the Northeast of India: Sanctioning repression in violation of India's human rights obligations, by REDRESS, UK, Asian Human Rights Commission, Hong Kong and Human Rights Alert, Manipur, India; available here.
• US Statement at the Universal Periodic Review of India, available at here.
• Statement of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya, as she concludes her visit to India, available at here.
• Press Statement-Country Mission to India Christof Heyns, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, 19-23 March 2012, here.
• No proposal of Verma Committee was rejected, says Chidambaram, By Sandeep Joshi, the Hindu, 4 February, 2013; at here.
• AFSPA shame on democracy: Ex-IB official, By R Dutta Choudhury, The Assam Tribune, Guwahati, January 29, 2013; available at here.
• AFSPA is anti-democracy, constitution: Habibullah, the Morung Express, New Delhi, January 27, 2013, at here.
• Justice Verma panel suggests amendments to AFSPA, The Time of India, New Delhi, 24 January 2013, at here.
• In Geneva, India defends its human rights record, By Sandeep Dikshit, The Hindu, New Delhi, 25 May 2012 at here .
• SC notice to Centre on withdrawal of AFSPA from Manipur, By Dhananjay Mahapatra, The Times of India, New Delhi, 20 October 2012; available at here.
• Review process highlights at Universal Periodic Review (UPR) of the UN Human Rights Council, 2 June 2012, Press Release of Civil Society Coalition on Human Rights in Manipur and the UN; at here.