Human rights under Indian Constitution and AFSPA in NE
- Part 2 -

By Jagat Konthoujam *

Under the Act, the security forces are protected from being held liable for extrajudicial executions, although the government claims that the laws only require prior sanction for prosecution, in fact prosecutions have been very rare, if they have taken place at all.

Hardly, the people take legal steps against the army and police as there is a instant fear in the mind of the people that they might be tortured to death at any time by the armed forces or the police under the said concocted story, if such legal steps are taken. And in such cases legal proceedings are quite often subjected to long delays.

Article 14 in part III of the Constitution ensures to its citizens equality before the law and equal protection of the laws within the territory of India which means that no citizen or group of citizens shall be discriminated vis-a-vis any other citizen or group of citizens.

However the armed forces (special powers) act, 1958 is made applicable to the North-East Region only and not to the States of Maharashtra, Madhya Pradesh, Bihar, Jhar-khand, Uttar Pradesh and Jammu & Kashmir where insurgency like Naxalites, LTTE etc. are prevailing.

So, such act violates Article 14 of the Constitution and introduced a feeling of discrimination and alienation in the minds of people of North-East States that they have been subjected to what they call "draconian or black" enactment made specially for them.

Keeping in view the above discussions, the armed forces (Special Powers) Act, 1958 is very harsh and counter productive and is unarguably unreasonable and arbitrary. The Act is particularly, in violation of Articles 14, 19 and 21 of the Constitution of India. There are various legal defects and procedural lapses of such enacted piece of law (AFSPA) if examined from the Constitutional Angle.

However, it is very unfortunate that the Armed Forces (Special Powers) Act, 1958 was upheld by the Supreme Court of India in the Naga Peoples Movement for Human Rights Vs. Union of India.

The present armed forces (special powers) Act, 1958 was enacted by the Parliament and adopted to apply to all the states of North-East Region. The Act has not been made applicable to any other states in the country except the North-East States.

Armed forces (special powers) Act, 1958 is an Act which gives blanket power to the armed forces and police personnel from the level of havaldar upwards. So, particularly during operations, the incidents of rape, torture, wanton firing and killing of many innocent people are the very part and parcel of the operations conducted by the security forces. The people are very much afraid of such operation by the security forces as per past experiences faced by them in a number of operations.

Taking advantage of the immunity granted by the Act, several killings, torture, molestations, rapes and extortions have had taken place since the Act does not provide for or create a proper machinery which provides protection against the excesses allegedly committed by the armed forces and state police under the Act. And as such the security forces are violating the very basic human rights of the people in the region because the security forces need not fear, they will be protected from being held liable for extra judicial executions.

Thus, the illegal acts committed by the armed forces and State police indeed, produce a psychological effect in the development of thought process, particularly to the young people to take revenge against the security forces for killing, torturing, illegal detentions, raping, molestation, disappearances and extortions of their brothers, sisters, parents and relatives.

It is therefore, not the proper theory to solve the insurgency problems in the North-East Region because it is a political problem, it does require political solution. The imposition of these particular draconian laws was against the wishes of the common people of the North-east region. Since the day till today, the violation of human rights is going on as a daily routine and becomes a never ending story.

This Act in the North-East has continued for last 5 (five) decades, but it has failed to solve the problem for which it was enacted, instead the number of insurgency groups are increasing and happening chains of killing of innocent people, rapes, disappearances, extortions or other forms of human rights violations by the armed forces and police commandos. The negative impacts of the Act have been overwhelming.

As mentioned above, "To think that only a draconian law can protect the integrity and survival of legal order is to betray lack of faith in the rule of law.

Today, there have been several efforts at various levels to resist the violation of human rights. Several human rights protection groups have documented hundreds of cases of disappearances, killings, tortures, molestations, rapes and destructions at the hands of armed forces/military and police authorities.

It is equally the duty of the Union and the States to not only respect the fundamental rights conferred upon the citizens of India by Part III and other provisions of the Constitution; they are also under an obligation to ensure the conditions wherein the citizen can enjoy and avail of the fundamental and other rights available to the citizens.

It is also pertinent to highlight that the judiciary by virtue of the power vested in it under the Constitution of India is the protection of the life and liberties of the citizens. So, the judiciary is a zealous guardian of the human rights. However, surprisingly the judiciary which is the guardian of the Constitution remains as a silent spectator.

Now, we have to endeavour to restore the peace and democracy and not the present rule of gun which has been permanently sustaining since 1950s. The fact that TADA and TOTA had been repealed, why not AFSPA, is the question of the people of the North-East region.

The black laws should immediately be revoked and human rights should be protected.

Concluded...