Beating the Good, Bad and Ugly AFSPA to Death
Why is it not dying?
- Part 3 -

Puyam Nongdrei *

Children depicts forceful nose feeding of Irom Chanu Sharmila at Sangaithel on Nov 4 2012 :: Pix - Pui Longjam

Operation of the armed forces of the Union in cooperation with the civil administration has worsened 'the situation' which earlier, has necessitated the deployment of armed forces and cannot 'effectively dealt with' it and has failed to restored 'normalcy'. The 'disturbed situation' and 'normalcy' are subjective and ambiguous terms with no clear definition. In another words, no normalcy means permanent imposition of AFSPA and the state of normalcy is something not well-defined.

According to the judgment, declaration of disturbed areas has to be for a limited duration and a periodic review of the declaration must follow before the expiry of six months. What is mean by 'a limited duration'? Here again, effective dealing with the situation and restoration of normalcy for doing away with the Act after a periodic review is a flawed conclusion as the continuity of the situation permits unlimited duration through extension after extension.

Handing over the arrested person to the officer in charge of the nearest police station with least possible delay so that he can be produced before nearest magistrate within 24 hours of such arrest sounds good but is rarely implemented. Most of the time the arrested persons face summary or extrajudicial executions in the hands of the State or Central or combined armed forces personnel.

Regarding the property or the arms, ammunition etc., seized during the course of search conducted, there is no accountability of such property or arms being handed over to officer in charge of the nearest police station. There are refutations of circumstances under which the arrested persons die as contradictory reports always come from the family members and the security forces.

Large sum of money and huge cache of arms went missing unreported if the claims of the insurgent groups are to be counted. Use of such unaccounted arms in extrajudicial killings cannot be ruled out as many family members report about arrest made from the premises of their houses and security forces claim encounter death somewhere else wearing combat fatigue and recovery of such and such arms.

Such a situation is exploited by many to get promoted, win police medals or gallantry awards. Arresting members of insurgent groups belonging to finance department and recovery of huge sum of money by the security forces make it their lucky day to pocket some or distribute the whole amount among them. There is nothing strange about this in this land of corruption. About the report of the circumstances occasioning such search and seizure, 'getting reliable intelligence report' is the line everybody reads in the press statements released by the security forces.

The judgment states that grant or refuse of sanction by the Central Government does not suffer from the vice of arbitrariness. Since the order of the Central Government refusing or granting the sanction is subject to judicial review. As "Dos and Don'ts" are not strictly followed and suitable action under the Army Act, 1950 are not taken up against the accused personnel, the only viable means left by the Supreme Court is the judicial review.

The clause (21) in Para 74 of the Supreme Court judgment states that the complaint containing an allegation about misuse or abuse of the powers conferred under the Act shall be thoroughly inquired into and, if on enquiry it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or suit or other proceeding should be granted under Section 6 of the Central Act. This is what Government of India has been telling the human rights groups to do whenever India faces the Universal Periodic Review, the latest being in 2012.

The twin petitions filed by Dr Suresh Singh and Extrajudicial Execution Victim Families' Association (EEVFAM) can bring hope to the victims and victimized people of North East India and Jammu & Kashmir. Will Supreme Court issue some more "dos and don'ts"? If not, the apex court must accept the fact that "The Act is too sketchy, too bald and quite inadequate in several particulars" as pointed out by the Jeevan Reddy Committee.

The Supreme Court Order on the two writ petitions has set up a three-member high powered commission constituting Justice N. Santosh Hegde, a former Judge of the Supreme Court of India, J.M. Lyngdoh, former Chief Election Commissioner, and Ajay Kumar Singh, former DGP and IGP, Karnataka to look into the first few cases of extrajudicial executions in Manipur. We have to wait for the findings of this commission too.

From Jeevan Reddy Committee to Justice Verma Committee

Jeevan Reddy Committee was set up vide Ministry of Home Affairs Office Order No. 11011/97/2004-NE-III dated 19th November 2004 in the wake of the intense agitation launched by the people of Manipur following the death of Thangjam Manorama on 11 July 2004 and the indefinite fast undertaken by Irom Sharmila since 2001. The Committee stated that 'the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness' and urged that the AFSPA, 1958 should be repealed.

The Report of the Committee on Amendments to Criminal Law or the Justice J.S. Verma Committee was constituted by GoI Notification No. SO (3003)E, dated 23 December 2012 to look into possible amendments of the Criminal Law to provide for quicker trial and enhanced punishment for criminals committing sexual assault of extreme nature against women. The committee recommended amendment to Section 6 of the AFSPA, 1958 to do away with the sanction required from the Central Government to start legal proceeding against the accused personnel who have committed sexual assault against women in disturb areas.

These two high-level committees have proved beyond doubts that AFSPA is a problematic brainchild of colonial administration that was hurriedly borrowed from the British colonial statute book. Besides, many international human rights NGOs such as the Amnesty International, Human Rights Watch, and Asian Human Rights Commission have criticized this legislation time and again. Many civil society organisations across the country have also attacked this 'draconian Act'. The period from 2004 to 2013 is long enough to end the consultations with the stakeholders to amend or repeal AFSPA.

Why is AFSPA not dying?

AFSPA is not going to have an easy death because the Government of India does not want to give up militaristic approach while dealing with conflicts in Jammu & Kashmir and North East India. Other Acts such as TADA, POTA and UAPA have been attacked from different national and international organizations. To continue with the present militaristic policy, GoI is looking for a means to keep the fire burning. The fight is also about military solution or political solution to the conflicts in these areas.

Cease-fires, peace talks, suspension of operation (SoO) and active military operations have no impact on exercise of AFSPA as these areas always need to be militarised. Under such circumstances, withdrawal of military from such areas is a dream GoI never wants to dream. Psycho operations and intelligence gathering and civic military action programmes to win hearts and minds of people affected by the conflicts are indications of how the military is making its roots go deeper in the soils where AFSPA grows.

Another important factor is China with which India has unsettled boundary disputes in Arunachal Pradesh. The strategic location of these territories under AFSPA and demand for self-determination drives heavy deployment of military in such areas. Without addressing the grievances of the people residing in these areas and without any interest for finding political solution to the conflicts, there is every possibility of military reigning supreme in these areas.

It is only because of the resistance of the people that there has been pressure on the state to think of changing the position. Without resistance, the mentality of the policy makers is nothing but permanent militarization on the ground of disturbed situation. It is like teaching the people in these areas to live in co-existence with armed forces in a warlike situation for all time.

Taking advantage of the internal conflict situation, India has managed to stockpile its military hardware and develop infrastructures which are used for double-pronged approach. One targets external enemies and another one to check the internal conflicts. The Parliament of India has been remaining silent over the issue of AFSPA and human rights violations for many decades which has something to do with national security concerns mixed with racist mentality of the leaders who mostly hail from areas not affected by the AFSPA.

After long deployment in order to establish 'internal law and order' in areas declared as 'disturbed', the armed forces have established themselves as a major stakeholder in deciding the fate of the said Act. Besides, there is certain level of 'politicisation of the armed forces' operating in these areas which enable them to question the position taken by the state. The Defence Ministry is strongly against repealing or diluting AFSPA as if the armed forces are meant to rule these areas sometimes aiding the civil administration, sometimes subordinating it by exercising AFSPA.

People's movement against AFSPA should not be read as a fight between armed forces and the people affected by AFSPA. It is a fight between the democratic camp and the martial camp followers. The real fight is against those 'brains in the Parliament or elsewhere' that unleashed brute force against human beings and continue to stand by it. We can see many elected representatives speaking the language of martial rule which clearly shows their identities and their approach.

This is a pure 'war of the nerves' fighting for democratic rights and freedom for creating a democratic space on which we can stand to safeguard our rights and interests from encroachment by the forces inimical to democratic principles and rule of law. It is fight against the blood-stained Parliament of India which passed this legislation and against the Parliamentarians who continue to keep mum in order to please the armed forces.

If the GoI rejects Justice Verma Committee recommendation of punishing armed forces personnel who have committed sexual crimes against women, AFSPA-worshippers are going to send a bad message throughout the world. It will be a declaration that sexual crimes committed by armed forces personnel are not to be held accountable like in other cases. It is the true inhumane character of AFSPA and its worshippers. This is nothing but saying that we can do anything and get away with that.

Under AFSPA and AFSPA-like legislation, people can think of living in a society which can be compared to a 'blood-splattered platter'. This is not the society the Constitution of this country promise to deliver to its people. It is also not the freedom that human beings all over the world aspire to enjoy. The situation in Manipur is a clear example of a people who have been forced to live a 'life of despair' under AFSPA with little or no redress to seek protection of their fundamental rights.

It is the AFSPA which certifies whether one is a citizen of the state or enemy. It is the legislation which allows armed forces to see the people of Manipur as 'potential enemies' who deserve to be killed on suspicion. The Supreme Court of India and other international human rights bodies must act upon Indian State to ensure accountability of what the armed forces have been doing in such areas. Lastly, AFSPA can never be good. It is utterly ferocious, ugly and bad for humanity.

Leibak mangnanaba thugainaba khousaba kayagi marakta
leibak asibu kannanaba amasung meeoiba kanglup/phurup asibu chaokhatpa yaiphaba punshigi maikeida lamjingliba khousaba kayabu thagattaba ngamjade.
Araan-asoi kaya sengdoknaduna yannadaba kaya taisinnaduna sangtainaba ngamdaiba matam adu oire.
Leibak asi kharung mapham naidabagum leirakpa kuire.
Kharung mapham chana thamnaba aduga lan-thum peisinnaba thoupaanglasi eikhoi.

"Uchi chi chi kharung mapaan khousaba sentai lak-i phrang.
Khrang khangcheng naha pakhangba/Khwai nungseng piba mana khousaba sentai lak-i phrang."
(Source: Meetei Puyas)

Concluded ...

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.