Beating the Good, Bad and Ugly AFSPA to Death
Why is it not dying?
- Part 2 -

Puyam Nongdrei *

Black Day Observation on AFSPA at New Delhi on 11 September 2011 :: Pix - Luwang Shinyen

AFSPA meets the United Nations

The UN Human Rights Committee had learned the true nature of AFSPA at least by early 1990. However, the first (2008) and second (2012) Universal Periodic Reviews (UPRs) have brought positive changes in terms of UN Human Right Council opposing the AFSPA in the strongest terms. Internationalisation of the campaign against AFSPA is visible in these developments. This is against the backdrop of India's rising international status with higher political and economic clout.

In July 1997, the Human Rights Committee of the UN made its concluding observation expressing concern at the continuing reliance on special powers under legislation such as the AFSPA, the Public Safety Act and the National Security Act in disturbed areas where gross human rights violations have been reported. Again the treaty body hoped for the Supreme Court ruling due to be heard in August 1997 to examine for compatibility with the covenant.

Most importantly, the committee bearing the provisions of articles 1, 19 and 25 of the covenant stated that the problems in these areas affected by terrorism and armed insurgency are essentially political in character and suggested that the approach to resolving such problems must also, essentially, be political. Instead, the Government of India prefers the military approach or any step backed by strong militarisation.

Moreover, the Committee on the Elimination of Discrimination against Women (January 2007) expressed concern for not providing any information on the report of the committee established to review the AFSPA in response to its previous concluding comments. It requested the State party to provide information on the steps being taken to abolish or reform the AFSPA and to ensure that investigation and prosecution of acts of violence against women by the military in disturbed areas and during detention or arrest is not impeded.

Again, the Committee on the Elimination of Racial Discrimination (CERD) in March 2007 expressed dissatisfaction over non-implementation of the recommendations of the committee to review the AFSPA (Jeevan Reddy Committee). It must be noted that Jeeven Reddy Committee was instituted after assurance from PM Manmohan Singh that AFSPA will be replaced by a 'more humane act' in the wake of Thangjam Manorama's rape and brutal killing by the Assam Rifle personnel.

CERD urged India to repeal the AFSPA and to replace it by a 'more humane act' in accordance with the recommendations contained in the 2005 report of the Review Committee. Interestingly, this committee came out to be another act of calming the people of Manipur who staged months-long movements against AFSPA. It was followed by the Committee on Economic, Social and Cultural Rights (May 2008) recommending India to consider repealing AFSPA.

In the Report of the Working Group on the Universal Periodic Review on AFSPA at the UN Human Rights Council (April 2008), the United Kingdom (UK), Canada, and Germany urged India to implement the recommendations of several treaty bodies to repeal or review the Act.

Categorically attacking the policy of India, Canada raised issues concerning the Armed Forces (Special Powers) Act and referred to reports of torture and abuse by and impunity of police and security forces acting under the AFSPA. Canada spoke about the commitment of the Prime Minister (Manmohan Singh) and the studies undertaken to reform the AFSPA and asked what measures had been taken to repeal or reform this Act.

For those campaigning against AFSPA, the first Universal Periodic Review of India (2008) was a major success in terms of internationalizing the bad character of AFSPA and the cases of human rights violations in areas where is has been imposed. In the second UPR (2012), without specifically mentioning AFSPA, even the US has expressed concerns about 'widespread impunity', 'extrajudicial killings and torture committed by the security forces' in India and had recommended ratification of the Convention Against Torture (CAT) and end of impunity for security forces.

Again, the US statement at the UPR at Human Rights Council on 24 May 2012 shows that India is violating many international human rights standards. Therefore, human rights defenders fighting against repressive state policies under AFSPA are not fighting to please the armed insurgent groups and their sacrifices have been given due recognition through such statements from many countries.

It truly proves that this Act is un-democratic and it deserves an early death. Now the question is not just about constitutionality of AFSPA or unconstitutionality. It is against the 'standard practices' of many democratic countries in the world and violates the fundamental principles on which many international human rights bodies have been established. India has ratified many of these treaties and further imposition of this Act is nothing but self-denial and telling loads of lies to cover the truth.

In addition, India welcomed two UN Special Rapporteurs on Human Rights Defenders and on extrajudicial, summary or arbitrary executions. Many human rights defenders' groups operating in Manipur and Northeast submitted reports to the visiting Rapporteurs urging for protection of human rights in the region. This was another positive development we can think of in terms of bringing the victims of human rights violations closer to international treaty bodies for redressing the issues. The Second UPR review was successful in terms of internationalizing the campaign against this Act as France, Switzerland and Slovakia made interventions for review or repeal of ASFPA.

Mrs. Margaret Sekaggya, UN Special Rapporteur on the situation of human rights defenders visited India from 10 to 21 January 2011 to assess the situation of human rights defenders in India. While acknowledging the security challenges faced by India, She expressed deep concerned about the arbitrary application of security laws at the national and state levels (in J&K and in the North-East of India), most notably the Public Safety Act, the Armed Forces Special Powers Act, the J &K Public Safety Act and the Unlawful Activities Prevention Act. She recommended that the AFSPA and the Public Safety Act should be repealed and application of other security laws which adversely affect the work and safety of human rights defenders should be reviewed.

Christof Heys, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions visited India during 19-23 March, 2012. In his Press Statement after the visit, Christof stated that the AFSPA in effect allows the state to override rights in the 'disturbed areas' in a much more intrusive way than would be the case under a state of emergency, since the right to life is in effect suspended, and this is done without the safeguards applicable to states of emergency.

He also expressed dissatisfaction over the Supreme Court ruling in 1997 that AFSPA does not violate the Constitution. It was stated that 'AFSPA clearly violates International Law' on which ground many UN treaty bodies have pronounced it to be in violation of international law, namely Human Rights Committee (July 1997), CEDAW (January 2007), CERD (2007) and CESCR (2008). In addition, Christof opined that it is also difficult to reconcile in the long run with India's insistence that it is not engaged in 'armed conflict' citing heavy deployment of armed forces and lethal use of force.

AFSPA and the Supreme Court

Human Rights Forum, Manipur (HRFM) which was formed at the tea stall behind the Gwyer Hall in the Delhi University and submitted the first Public Interest Litigation (PIL) challenging the constitutionality of the AFSPA in the Supreme Court on 10 October 1980. It was followed by Naga People's Movement for Human Rights (NPMHR)'s petition leading to the well-known Supreme Court judgment on AFSPA, 1958 on 27 November 1997. A bench constituting J.S.Verma, Chief Justice of India and other four judges made the judgment which is being used by Government of India as 'protective shield' against any attack involving AFSPA so far.

India's National Report submitted to the Human Rights Council for the First UPR in 2008 clearly states that "legislation in India is subject to review by courts as regards its constitutionality, and the exercise of executive power is subject to different forms of judicial review. In the event of infringement of an individual's fundamental rights, the highest court in the land, the Supreme Court, can be moved."

It also encouraged public interest litigation (PIL) as a means to redress situations of grave human rights violation by approaching the Supreme Court. Again replying to a question from the Syrian Arab Republic on the role of judiciary in protecting human rights, India noted that the judiciary is the sentinel and watchdog of human rights in India and said that Supreme Court and the High Courts are easily accessible to the ordinary people and have acted even on the basis of information on a post card from a person under detention.

India responded to Canada's concerns in reference to the impunity for human rights violations under AFSPA saying that it was incorrect. The report stated: "no forces, armed or police, function with impunity. Armed forces were under strict orders not to transgress human rights and the strictest action is taken, and incidents are swiftly adjudicated, including through courts-martial."

This is what India tells the international community whenever some countries or treaty bodies raised concerns regarding AFSPA. What is the truth at the ground level? Here again, the Indian delegation stated that the constitutionality of AFSPA had been upheld by the Supreme Court and made reference to armed forces being governed by provisions of their acts to deal with any violations.

This is how the Government of India promotes its image in the international community by projecting its internal mechanisms as active and kicking bodies redressing the issues related to human rights violations. Internationalisation of the campaign against AFSPA is something that the Central Government does not like. Is this possible? What will be the stand of Supreme Court after its 1997 judgment? Will the PILs filed by Dr Th. Suresh and EEVFWAM bring changes to SC's earlier stand?

The National Report to the second UPR (2012) was presented by Attorney-General Goolam E. Vahanvati who mentioned about the Supreme Court judgment of 1997 upholding the constitutionality of the act and several checks and balances recommended for the armed forces personnel exercising the special powers. Therefore, the Government of India has not moved from its position despite many committees recommending review or repeal of this hated piece of legislation.

After the 1997 Naga People's Movement for Human Rights (NPMHR)'s petition, the constitutionality of this act was upheld but the apex court pushed for strict following of the instructions contained in the lists of 'Do's and Don'ts issued by the army authorities. In this regard, the Jeevan Reddy Committee Report (2005) stated:
"It is true that the Hon'ble Supreme Court has upheld its (AFSPA) constitutional validity but that circumstance is not an endorsement of the desirability or advisability of the Act. When the .............necessity of such an enactment. It must be remembered that even while upholding its constitutional validity, the Hon'ble Court has found it fit and necessary not merely to approve the "Dos and Don'ts" in the instructions issued by the Army Headquarters from time to time but has also added certain riders of its own viz., those contained in clauses 8, 9 and 14 to 21 in Para 74 of its judgment."

Some problematic areas/loopholes of the SC judgment contained in the several clauses are being exploited by the armed forces to misuse the special powers with impunity. The expression 'in aid of the civil power' and 'continued existence of the authority to be aided' (read State Government of Manipur) do not address the breach of functions or jurisdiction as the expression 'in cooperation with the civil administration' is without clear jurisdictional boundary and many instances of violation of the same such as what happened during the 'Operation Blue Bird'. There have been reports of cold war between state forces and central forces over the issue of jurisdiction whenever major confrontation occurs in the state.

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.