Human Rights Versus AFSPA, 1958

Khangembam Chonjohn Singh *

Is there real intention of the Central Government to amend the Armed Forces (Special Powers) Act, 1958 (AFSPA in short), though not to be repealed? Amendment of AFSPA, how far and to what extent possible, if it is not a "licence to kill"?

Events of human rights violations : Killing of several innocent people by the armed forces in Manipur during the last 30 - 40 years at different parts—both in the hills and the plain—including the greater Imphal area in broad day light, arrest of one Manorama from her house at midnight with issuance of arrest memo and abandonment of her dead body in the same night in the outskirt of a nearby village, a little distance from her house.

All these and other attrocities of armed forces have been totally ignored by the Central Government perhaps because of its feeling that the Manipuris are not important or not bonafide citizens unlike those people of the other larger/bigger States. In protest against the excess of the armed forces, bandh, blocked and rallies have been organised with series of public meetings and semminars by the general public and human rights organisations followed by their submission of public resolutions and representations to the central authorities pointing out to them as to haw far and how clearly the AFSPA is unconstitutional and void as being contrary to and violation of Article 21 of the Constitution of India read with its Articles 13 and 14.

The text of the said three Articles of the Constitution reads as follows :­
"13. Laws inconsistent with or in derogation of the Fundamental rights.
(1) All laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency be void.
(2) The State shall not make any law which takes away or abridges the right conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention be void.

Right of Equality.

"14. Equality before law—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
"21. Protection of life and personal liberty—No person shall be deprived of his life or personal liberty except according to procedure established by law."

Very simple question is why and how a citizen can be deprived of his life in the hands of any army officer without due process of law ie not according to procedure established by law but by mere opinion and satisfaction of a 'havildar' to fire upon or otherwise use force even to the cause of death of that citizen within the mischief of section 4(a) of AFSPA.

Because of this draconian nature of AFSPA army dares to regard it as a 'holy book' while in fact it is not a complete code by itself and it has no procedure at all to test your guilt or innocence except to be triggered by the havildar's bullet only upon his satisfaction aginst you to be the 'some one' deserving 'death sentence'. and execution ie to end your life then and there in custody.

As per the term "except according to procedure established by law" appearing in Article 21 of the Consitution read with Article 14 (Equality before law), deprivation of one's life has to be preceded by a fair trial before a competent court followed by his further right of appeal (if he is convicted by such court) and furter right to seek presidential mercy.

Now, during the last few weeks, the Central leaders seem to be awaken by the arbitrary killing of some people of other States by the army. When news of such events of killing innocent people by the army have been published in some national papers and brought to the notice of the leaders, they are quoted as being not satisfied with those action of the army.

The Hon'ble Prime Minister Dr Manmohon Singh said (vide DECCAN Chronicle dated 8-6-2010), "I am aware of some complaints related to human rights. The Government's policy is to protect human rights even when dealing with terrorism." The Prime Minister is said to have added "The security forces have been strictly instructed to respect the rights of civilians. we will act to remove any deficiency in implementation." The news report related to the event of killing three Kashmiri youths by the army in a staged encounter.

The Prime Minister is further quoted to have re-iterated his offer of talks with separatists as "We wish to carry forward the process of dialogue (and)... are ready to hold talks with the representative of any group which shuns violence and terror.

Consequent upon the said statements of the Prime Minister, the Government is planning to go ahead with proposal for certain amendments of AFSPA to include at least a provision therein for handing over the army personal in case of extra judicial killings to the State authorities. While the army raises issues even terming AFSPA as a "holy book", Government sources feel that there was a need to give a fresh look to the Act and make it more human. A draft note is said to have been circulated to the law and defence Ministries for their comments.

The UPA Government is said to be continuing to strive hard to fulfit the assurance made by the Prime Minister Manmohon Singh in carrying out a thorough review of the AFSPA and making it more humane. The said daily in its issue dated 21-6-2010 further reports saying "The AFSPA gives the Army power to detain and, if the situation warrants, eliminate suspected terrorists when they are fighting insurgents without the fear of prosecution the amendment also includes handing over of Army personnel, who allegedly indulge in fake killings, to the local police authorities for prosection."

Here, at this juncture of "Political fever on AFSPA" it would be relevant to have an excerpt from what the present Chief Minister of J&K Omar Abdullah has recently spoken about the need to amend AFSPA (media report published on 30-6-2010 in DECCAN Chronicle in the form of Q & A under the caption "perception problem over AFSPA), the text whereof is as follows :
"Q. An Army general has described the AFSPA as a "holy book" which can't be annulled. Are the people in khaki trying to overrule the political leadership?
A. Fortunately for us, unlike with most if not all our neighbours, we have never had a problem with the uniform trying to overrule the political establishment, whether at the state level or at the national level, And I am sure that not cbnly the officer you are referring to but his colleagues too will go along with the political leadership when the po titical decision is taken to amend the AFSPA. That has always been the strength of our armed forces'. Even our Constitution is open to amendments. Tbe AFSPA is not a document handed down to us from God Almighty. It is a creation of man through legislation, and it can be amended exactly like other laws.

Q. You have said that AFSPA has been a problem in the way of the Government's endeavour to ensure that perpetrators of innocent killings such as those in Macheal in north Kashmir are brought to justice. Why haven't you arrested Major Upinder so far when you were quick to make arrests in the case of the earlier Brein shootout in Srinagar?
A. We knew exactly what had-happened at Brein. It was a plain case of unprovoked firing which claimed the life of a boy. In the Macheal case, the inquiry is on punishment will follow. There has been a difference in the response of the Central paramility forces and the military. That perhaps is one of the reasons why there is a need to amen such a requirement for the amendment in the AFSPA so that not only is justice done but also seem to be done. That is what we are working on.

Q. So, you agreee the AFSPA is an impediment indelivering justice?
A. AFSPA has huge problems of perception on both sides—the perception of the average resident of J&K that it is abused, and the sense that it is indispensable for the security forces. The need is to address both views. I don't think we should constantly look at the AFSPA only from the prism of J&K. Long before this law was seen as a problem in J&K, it was a big problem in the Northeast. The move to amend it started there.

Presently, the army has already taken up an important point of law before the Courts as to the competency and jurisdiction of State Governments to constitute Judicial Inquiry under the Commission of Inquiry on Act, 1952 to inquire into and find out by it on the question of fact "Whether there was fake encounter extra judicial killing by the army/armed forces..." ?

Pending the cases before the Courts, Judicial Inquiry Commissions constituted by the State Governments have been suspended. The question is by whom or by which authority the said point of law has to be determined, am at the same time, when, how and by whom the concerned army personal has to be booked and handed over to the State authorities for his alleged involvement in fake encounter or commission of extra judicial killing.

In the absence of specific provisions in that regard under a special statute or the AFSPA itself, mere addition of a provision by amendnment of APSPA to hand over the army or armed forces officer involved in "fake encounter" or "extra judicial murder" to the State authorities, would not serve the purpose. AFSPA, if not repealed or amended thoroughly would ever remain as a "licence to kill" ie to eliminate anyone at any time and place, whenever and wherever it is allowed to be in operation or in force as against the rule of law.

It is a must and an obligation long overdue for the Central Government to amend AFSPA, if not to be repealed, at least to delete or otherwise obliterate the words ". . . fire upon or otherwise use force, even to the causing of death, against any person..." appearing in Section 4(a) thereof. Life of citizens deserve protection ensuring them not to be deprived of their life except according to the Code of Criminal procedure, 1973.

Further, it would be expedient to remove Section 6 of AFSPA and to make complaints against the army or armed or forces officers cognizable and to be investigated by police officer of some higher rank upon re gistration of FIR case at the Police Station within whose local area the occurrence complained of takes place.

Let AFSPA be no longer a "Licence to kill".