The Armed Forces (Special Powers) Act, 1958: more than mere human rights issue
- Part 1 -

Yumnam Premananda *

Women folk staged a protest in front of historic Kangla against imposition of Armed Forces Special Powers Act (AFSPA) on Jan 25 2014 :: Pix - Deepak Oinam / Ranabir Pao

ABSTRACT

The Armed Forces (Special Powers) Act, 1958 is one of the most draconian legislations that the Indian Parliament has passed in its Parliamentary history. The Act violates non-derrogable provisions of human rights law. The AFSPA, is in fact more than an emergency provision. 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. The Parliament of India has been acting virtually as Linlithgow- II in the North-Eastern region for more than half a century. The AFSPA is racist and it is a symbol of racist regime, it only meant for racially or ethically distinct areas of northeast India.

Extra-judicial execution, torture, enforced disappearances, rape, illegal detention, committed against the indigenous peoples of NE India with intention to destroy, a national or ethnic or racial or religious group is nothing but genocide. This genocidal Act empowers the armed forces of India to kill and rape with impunity and immunity, indigenous peoples of the region and, thereby, simply transforming the region as a torture-chamber and concentration camp of political dissidents of Delhi regime. Rape is employed as a tactic of war by India in NE region in its larger campaign of genocide. A law such as AFSPA has no role to play in a democracy. No civilized jurisprudence would justify this additional empowerment given to the armed forces to kill its own citizens.

Yumnam Premananda
Assistant Professor,
Govt. Mizoram Law College, Aizawl

"The Armed Forces (Special Powers) Act, 1958 - more than mere human rights issue"

Introduction:

The Armed Forces (Special Powers) Act, 1958 (AFSPA) is one of the most draconian legislations that the Indian Parliament has passed in its Parliamentary history. The Act violates non-derrogable provisions of human rights law and fundamental norms of International Humanitarian Law (IHL). The Act itself is against India's international law obligation. It facilitates impunity. Because of this lawless law, human rights abuses is a feature of daily life in NE India.

AFSPA facilitated incidence of custodial deaths, torture, rape and gang rape, extrajudicial killings, massacres, arbitrary arrest, and enforced disappearances. The AFSPA, is in fact more than mere human rights issues. Its consequences are far-reaching and much more. Though in wider sense everything is human rights and accordingly human rights violation, but AFSPA can be looked into its hidden agenda and goal oriented interpretation - more than human rights issues, what we normally confined to.

AFSPA- special powers to armed forces to kill its own citizens in mere suspicion:

The AFSPA was enacted by the Parliament in 1958 and it was known initially as Armed Forces (Assam and Manipur) Special Powers Act, 1958.The present name the Armed Forces (Special Powers) Act 1958 was because of the Amendment Act 7 of 1972. The Act was preceded by an Ordinance called Armed Forces (Assam and Manipur) Special Powers Ordinance, 1958 promulgated by the President of India on 25-5-1958. It is pertinent to mention that the Act was originally enacted as a temporary measure to suppress demands for self-determination in the post independence period in the Naga Hills but in fact large part of the NE is still declared 'disturbed' under the Act and civilian population is still under grip of the military rule. The Act is described by Pillay (2012) as "dated and colonial-era law that breach contemporary international human rights standards."

The Act defines "Armed forces" as the military forces and the air forces operating as land forces, and includes other armed forces of the Union so operating (S. 2(a)). Thus the Armed Forces established and maintained by the Union also fall within this definition.

Section 3 defines "disturbed area" by stating how an area can be declared disturbed. It grants the power to declare an area disturbed to the Central Government and the Governor of the State, but does not describe the circumstances under which the authority would be justified in making such a declaration. Rather, the AFSPA only requires that such authority be "of the opinion that whole or parts of the area are in a dangerous or disturbed condition such that the use of the Armed Forces in the aid of civil powers is necessary."

There are certain Acts which define the term "disturbed" in a clear terms viz. the Disturbed Areas (Special Courts) Act, 1976 and The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. But such clear definition is not in the case of AFSPA in NE India. So, in practice it is only the government's understanding which classifies an area as disturbed. And moreover, there is no mechanism for the people to challenge this opinion. This lack of precision in the definition of disturbed area demonstrates that the government is not interested in putting safeguards on its application of the AFSPA.

The Central Government can also overrule the opinion of a state government and declare an area disturbed. This happened in Tripura, when the Central Government declared Tripura a disturbed area, overruling the opposition of the State Government.

The entire State of Manipur (except Imphal Municipal area), Nagaland and Assam, Tirap and Changland districts of Arunachal Pradesh and 20 Km belt in the States of Arunachal Pradesh and Meghalaya having common border with Assam have been declared 'Disturbed Areas' under the AFSPA. The Government of Tripura has declared the areas under 34 Police Stations in full and part of the areas under 6 Police Stations as 'Disturbed Areas'. (MHA, 2010-11)

The Act gives blanket power to armed forces to kill its own citizen in mere suspicion and once the area is declared to be disturbed there is a reign of terror prevails (Premananda, 2010-11). Section 4 empowers special powers to the armed forces in disturbed areas not only to commissioned officer, but also to warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces. The special power is summed up in one line: "If he is of opinion that ... fire upon or otherwise use force, even to causing of death, against any person; Arrest, without warrant, any person .... a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest; Enter and search without warrant any premises ....". Whenever, there is declaration of disturbed area all the peoples are put under suspicion as enemy and this mere suspicion granted license to kill under the cloak of AFSPA and such crudest blanket provision is nowhere in the present world except in NE.

The Act grant impunity and thereby perpetrators escaped from punishment. Section 6 confers a protection upon the persons acting under the Act. It read as
"No suit, prosecution or other legal proceeding can be instituted against such person in respect of anything done or purported to be done in the exercise of the powers conferred by this Act except with the previous sanction of the central government."

This section leaves the victims of the armed forces abuses without a remedy and it also facilitates impunity because no person can start legal action against any members of the armed forces for anything done under the Act, or purported to be done under the Act, without permission of the Central Government. It enables perpetrators to escape punishment.

AFSPA - a colonial, racial, discriminatory and genocidal legislation:

The AFSPA is racist and it is a symbol of racist regime. Although the situation of law and order in other part of India is much more dangerous and disturbed like Maoist affected areas such legislation has not been in force, it only meant for racially or ethically distinct areas of northeast India (NE) and Jammu and Kashmir. The UN Committee o Elimination of Racial Discrimination (CERD: 2007) has also endorsed racial discriminatory nature of the Act.

AFSPA is also a colonial legislation. Its 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. In short, the Indian Parliament has been acting virtually as Linlithgow- II in the NE region for more than half a century. (Sanajaoba: 2007)

Above all the Act is discriminatory and genocidal legislation. Extra-judicial execution, torture, enforced disappearances, rape, illegal detention, committed against the indigenous peoples of North East India (NE) with intention to destroy, a national or ethnic or racial or religious group is nothing but genocide. The 'intent to destroy' requirement turns genocide into 'an extreme and the most inhumane form of persecution' (Ambos, 2009). This genocidal Act empowers the armed forces of India to kill with impunity and immunity, indigenous peoples of NE having distinctive ethnic and racial heritage, and simply transforming the region as a torture-chamber and concentration camp of political dissidents of Delhi regime. And Act itself prima facie discriminatory. Justice Reddy Commission Report also endorsed this aspect very briefly as "the Act ... has become a symbol of oppression, an object of hate and instrument of discrimination and high-handedness."

During the campaign of genocide in Manipur there were 1528 cases of extrajudicial execution including 33 women and 98 children by governmental armed forces since January 1979 till May 2012 as documented by CSCHR & UN (2013). 44 cases of brutal torture, 16 cases of enforced disappearances from 1980 to 1999 and 12 cases of massacres that resulted 110 dead including Malom killing of 1996, Tera Bazar killing of 1993, Oinam Village killing of 1987 and Heirangoithong killing of 1984 (documented by HRI, Manipur: 2009). These cases are illustrative in nature like a tip of an iceberg. Most of the cases were unreported and undocumented and above all national media is also silent and discriminatory attitude in many aspects.

Genocide campaign in Oinam Village of Manipur (Operation Blue Bird) is reproduced here to serve as an evidence of the matter. NSCN troops had killed 9 AR personnel and inflicted injury to three personnel on July 9, 1987 at the AR Post near Oinam Village in Senapati district. Post the attack, the AR personnel launched the operation and had allegedly burnt down over a hundred houses, six schools and 10 Churches in the thirty Naga villages. Properties worth of 50, 75,000 were allegedly destroyed from seven villages. Three women were reportedly raped, five women allegedly molested and around 300 persons were tortured by the AR apart from killing 27 persons at different locations on different occasions in Senapati district. Oinam carnage of July 9, 1987 - SDC N Surendra who collected hard evidence of the Indian military personnel's atrocities at Oinam was picked up allegedly by Assam Rifles from the road and killed but his corpse was never found. (The Sangai Express; July 11, 2012)

Justice JS Verma Committee adds that " ... brutalities of the armed forces faced by residents in the border areas ..... and conflict areas are causing more alienation" and " ... that impunity for systematic or isolated sexual violence .... is being legitimized by AFSPA ..."

Under the Act even non-commission officers are empowered to shoot at sight and more interestingly de jure impunity is granted to armed forces of India for their criminal act. It means 'extrajudicial executions under the cloak of AFSPA have become virtually a part of state policy'.

The Supreme Court of India (AIR 1998 SC 431) very surprisingly upheld the Constitutional validity of the AFSPA. This judgment of apex court has run a short of juristic ammunitions and the verdict borders on the extreme edge of technical formalism of the crudest positivist kind. Christof Heyns rightly observed that "it is therefore difficult to understand how the SC, which has been so progressive in other areas, also concerning the right to life, could have ruled in 1997 that AFSPA, did not violate the Constitution." (Heyns: 2013). So there is no meaning of judicial activism and sacrosanct nature of right to life to the peoples of NE. In short, the SC in spirit had upheld a statute comparable to that of a Nazi statute in post-colonial republic of India and consequently a silent party to the genocide in NE particularly in Manipur. (Sanajaoba, 2004, 170)

It seems that all the organs of Government of India (GOI) viz. Executive thorough the machinery of its armed forces, Legislature and Judiciary and national media are collectively act as policy to accomplish their avowed agenda.

The fact of racial, discriminatory and genocidal policy of GOI is also very clear from the fact that the GOI has repealed the Terrorist and Disruptive Activities (Prevention) Act, 1985 and the Prevention of Terrorism Act, 2002 and not the black law AFSPA.

GOI's persistent refusal to repeal the Act even though with strong worded recommendations poured from UN human rights bodies, Treaties Monitoring bodies including Human Rights Committee, CERD; Committee on All form of Discrimination against Women, Committee on Rights of Child observations by many international rapporteurs, credible international human rights NGOs and its own created committees clearly shows the colonial mindset of the GOI.

The governmental armed forces too are victims of AFSPA because of retaliation and communal tendency arising from genocide, torture and other inhuman acts committed by them. This violence and genocide often arise from racial and ethnic discrimination. Discrimination can easily lead to racially and ethnically motivated violence, which in turn, may escalate into genocide.

This state policy of genocide, extreme persecution coupled by oppression and cycle of legal impunity as a result of AFSPA prove that the existing GOI is racist regime and the Act itself is an instrument of genocide campaign.

To be conitnued...