Impunity Institutionalized
- AFSPA completes 50 years as Indian law -

By Jagmohan Singh *

While people couldn't care less and the State continues to revel in the impunity granted to the armed forces, well-meaning social activists, journalists, academicians and young human rights activists demand the repeal of the Armed Forces Special Powers Act, 1958 at a Seminar held in New Delhi on 22nd May 2008 –marking the 50 years of the legislation. The event went totally unreported in the Indian media. The author files this report and comments on various aspects of the draconian law.

50 years ago, on 22nd May 1958, in the face of rising political dissent in the North-east, India decided to add fiction to its laws -the Armed Forces Special Powers Act. Though enacted only for a year, it has continued since.

It contravenes the fundamental principles of jurisprudence, Indian law, particularly the right to life and right to a fair trial and international standards, particularly the derogable and non-derogable provisions of the International Covenant on Civil and Political Rights to which India is a signatory.

Though meant to be a tool for restoring public order by aiding civil authority, the AFSPA empowers the State governor to subsume the powers of the State government to declare "undefined" disturbed areas.

It also empowers non-commissioned officers of the armed forces to arrest without warrant, to destroy any structure that may be hiding absconders without any verification, to conduct search and seizure without warrant and to shoot causing death. No legal proceeding against abuse of such arbitrary powers can be initiated without the prior permission of the federal government.

Various interpretations of the provisions of this Act by various Indian courts have seriously undermined the role of the judiciary while adjudicating upon the validity of this law.

The panelist speaks out on May 22, 2008 Read more on this AFSPA panel here.

This legislation has been used as an instrument to deal with the people of the North-east militarily and not politically. While the people of Punjab had a brief taste of the Act in the 1980s, the people of Kashmir continue to be subjected to the same Act since 1990.

Families of victims have lost count of the various times that the provisions of the Act have been used to crush all forms of dissent –political, social and even personal. In the name of keeping the high morale of the "protectors of the country-the armed forces" a free-run has been given to the Indian Armed Forces for far too long in this part of the Indian territory, which according to the dissenters has been "illegally occupied" by the Indian state.

The Armed Forces Special Powers Act, 1958 must be repealed and there is no further argument on it.

To unnerve a brutal power regime and to awaken it from its slumberous torpor, something major had to happen. The continuity of the Act in "far off" North-east has simply gone unreported in the Indian mainstream media. The death of one woman - Manorama Devi and the steadfastness of another, who is on fast unto death for the past eight years – Ms. Sharmila, have brought the issue into focus.

The numerous acts of human rights abuses under the Act came to the fore after the gruesome murder of Manorama by the security forces operating under the Act in 2004. The people of Manipur rose up not only against the murder but also against the Act.

Civil liberties organizations and concerned citizens from across the country and world joined in the chorus of protest. Documentaries were made. People from all walks of life sat on protest demonstrations and candle light vigils. Womenfolk resorted to the extreme step of a "nude protest" to shame the armed forces and the government.

The government relented, but in its typical way of "setting up of a committee". The Prime Minister's Office constituted the Justice B. P. Jeevan Reddy Committee to look into the matter and explore the possibility of substituting the AFSPA with a "more humane" Act.

The Committee submitted its report on 6 June 2005 and recommended that the Act be repealed. Similarly the Administrative Reforms Committee headed by Veerappan Moily also recommended on 26 June 2007 that the Act be repealed.

Earlier, in February 2007, the United Nations Committee on the Elimination of Racial Discrimination had also recommended that the Indian Government immediate repeal the AFSPA.

So far the federal and Manipur governments have failed to meet many a promise made for repeal of the Act. Even the Jeevan Reddy Committee's report has not officially been made public, though The Hindu newspaper managed to leak its contents.

The Act is discriminatory no doubt and the alienation issues flowing from the misuse of the provisions make it more symptomatic of the malafide intent of the State.

Dr. Bimol Akoijan, a researcher at the Centre for the Study of Developing Societies, in the course of the recent conference in Delhi, remarked that "this Act is not an Act but legal fiction.

Discussing public interest litigation of civil societies, the Supreme Court of India, accepts that the conditions are not "disturbed" and that "armed rebellion does not constitute threat to national security". And then goes on to uphold the constitutional validity of the Act, which it did in 1997.

Senior Editor of the acclaimed Indian newspaper, The Hindu, Sidharth Vadarajan pointed out that the new phenomenon of arming civilians in Manipur is going to have serious repercussions.

"It is a dangerous experiment and all those engaged in armed resistance must keep away from these non-state actors" he said. He also commented that the use of National Security Act is yet another aspect which has not received much attention as there are cases of people being charged under sedition charges and then detained under NSA.

Ravi Himadri the Director of The Othermedia outlined that the ill as a matter of policy and governance. He said that "the larger policy of the government of India seems to be about dealing with militarization.

The state is unwilling to have a peaceful dialogue with what it conceives as 'small groups', for example the people living in Garo Hills. The law/army/ ministry have a big influence on the 'system' which is why repealing the Act is quiet improbable."

"The Jeevan Reddy Committee report has not been implemented clearly under army influence." He further said. He expressed the need to assess the social and psychological trauma undergone by the people.

Going into the question of institutionalizing the illegal methodologies adopted under the statute, a member of the Justice Jeevan Reddy Committee and renowned columnist, Sanjoy Hazarika, said that "one of the key questions is the prolonged imposition of the Act.

50 years of militarization is far too long and clearly exposes the lack of resolve, insecurity and failure of the government of India in handling the political questions of the region. The Act must be repealed and there is no further argument on it."

He further said that, "A new set of legal structure is needed and mutual understanding evolved to ease the problem and undo the damage done to the Indian army which is seen as a villain of the State."

A lady activist, Ninglun Hanghal of the Indian Social Action Forum suggested that the government of India should scrap the Act, atleast on an experimental basis and monitor the results. She said that serious problems like unemployment may soon spawn an era of social unrest. Pointing out at the other side of the picture, she said that with an increase in the number of insurgent groups, the problems have further escalated.

Like Sidharth Vadarajan, the Coordinator of Reachout, Kshetrimayum Onil also stressed upon the emerging problems which may set off as a result of the arming of civilians. He said that "Already there are over 50,000 armed forces so where is the necessity to arm small pockets of civilians. This shows complete irresponsibility of the government. The neutrality of civilians will be weakened and it may degenerate into "organized crime".

Urging the government to look at the problem as a political issue, he said that there is need for a solution through dialogue and not gun power. The Act is discriminatory no doubt and the alienation issues flowing from the misuse of the provisions make it more symptomatic of the malafide intent of the State, he further said.

Though the saner voices in India are becoming increasingly muted, it is satisfying to note that a number of organizations, namely the National Alliance of Peoples Movements, Asha Parivar , North East Dialogue Forum, Open Space (Bangalore), People's Watch, Drik India, MASUM, Jagori, Secular Alliance for Harmony among Youths of Grassroots (SAHYOG), Shwe Gas Campaign Committee, Human Rights Alert, Association for Protection of Democratic Rights, North East Network, Human Rights Forum (AP) supported the event which revived the demand for annulment of the anti-people legislation.

To follow the UN call of "All Human Rights for All" in this sixtieth year of the UN Declaration for Human Rights, India will do well to recall the words of Mary Robinson, the UN High Commissioner for Human Rights in her report to the 58th Session of UN Human Rights Commission.

She had said, "An effective international strategy to counter terrorism should use human rights as its unifying framework. The suggestion that human rights violations are permissible in certain circumstances is wrong. The essence of human rights is that human life and dignity must not be compromised and that certain acts, whether carried out by State or non-State actors, are never justified no matter what the ends. International human rights and humanitarian law define the boundaries of permissible political and military conduct. A reckless approach towards human life and liberty undermines counter-terrorism measures".

A Sikh soldier (name withheld), now in his eighties, who had served in the Indian army some decades ago, upon reading of a report of the violations under the Act, called up a political activist and said, "today, I am ashamed of what I did as a soldier longtime back while serving in Nagaland and Manipur."

I wish even India says the same.

---

* Jagmohan Singh is a political commentator based in Ludhiana. He may be contacted at jsbigideas(at)gmail(dot)com and courtesy of www.worldsikhnews.com. This article was made available to e-pao.net by Kshetrimayum Onil . This article was webcasted on June 02, 2008.

---