The recent attack on a convoy of the 6 Dogra Regiment of the Indian Army by insurgents in Manipur and the retaliatory attack by the Army along the border of Myanmar has yet again brought the restive North Eastern region of India into headlines. The otherwise obscure region finds mention in the national and international media on occasions of insurgency or counter insurgency stunts of such kind. The recent chain of events has yet again turned the spotlight on the Armed Forces Special Powers Act (AFSPA), the draconian act imposed in the region by the Indian state.
Armed Forces Special Powers Act (AFSPA), was passed by the Parliament of India on 11 September 1958. The Act empowers the governor of a state or the central government to declare any region within the state or the country as a “disturbed area” in case there are necessary reasons to predict that sufficient “danger” exists or is expected to arise in the area. The Act then permits the use of extraordinary measures such as deploying of “armed forces” and endowing them with unaccounted, unchecked and indiscriminate use of force within the “disturbed area”. The term “armed forces” refers to both armed and paramilitary forces operating in “disturbed areas”. “It empowers even the non commissioned officers of the armed forces to arrest without warrant, to destroy any structure that may be hiding absconders without verification, search and seize without warrant and to shoot even to causing death. No legal proceeding against abuse of such arbitrary powers can be initiated without the prior permission of the central government”. Two strands of voices have been advanced surrounding the Act so far. One by the state, which has rationalized the enactment and enforcement of demonical laws like the AFSPA in pursuit of national security and another by a whole bunch of Human Rights activists, who defy the apparent legitimacy of such a law. The extra-judicial executions of innocent civilians and myriad human rights violations remain a fact of life for the last five decades in the regions wherein the black law has been imposed.
The extra-judicial executions of innocent civilians and myriad human rights violations remain a fact of life for the last five decades in the regions wherein the black law has been imposed.
By a recent notification, the Ministry of Home Affairs had extended the AFSPA to almost entire Arunachal Pradesh, only to subsequently revoke it. As per the notification issued on March 27, all districts of Arunachal Pradesh bordering the state of Assam had been declared as “disturbed area” under Section 3 of AFSPA, 1958 for the next one year. So far, only three Arunachal districts — Tirap, Changlang and Londing — were declared “disturbed” besides areas falling within 20 kilometre wide belt in Arunachal Pradesh bordering Assam. The move was justified on the ground that the National Democratic Front of Bodoland, Sanbijit faction (NDFB, S) have reportedly set up their training camps in Taga, Myanmar and are looking forward to establishing a new route through Arunachal Pradesh for transfer of arms. The notification stated, “The geographical terrain of Arunachal Pradesh puts the militants in advantageous position and is used by underground outfits as their safe heaven”
The subsequent withdrawal of the AFSPA from Arunachal Pradesh and its revocation by the Tripura government in May this year had created sufficient optimism that the draconian Act would be removed from other “disturbed areas” too. But, the June 4 incident of violence against soldiers of the 6 Dogra Regiment has poured cold water on all such optimisms.
The Lawless Law: Mockery of Rights.
The AFSPA is based on a 1942 British ordinance intended to contain the Indian independence movement during the Second World War. A new ordinance was adopted by the Indian government in May 1958, then endorsed by parliament in August 1958, and given presidential assent to on September 11, 1958. During the Parliamentary debate, Laishram Achaw Singh, a member from Manipur, described it as a “lawless law” and warned that the AFSPA would only “harass innocent folk and deteriorate the situation.
The Act violates non-derogable provisions of international human rights law, including the right to life, the right to remedy and the rights to be free from arbitrary deprivation of liberty and from torture and cruel, inhuman or degrading treatment or punishment (ill-treatment) as enshrined in the International Covenant on Civil and Political Rights (ICCPR), to which India is a state party since 1979, and other treaties and standards.
Right to Life: Article 4(a) of the AFSPA undermines the very fundamental right to life in a manner that it grants power to the armed forces to shoot at a person causing even to death if the target is part of an assembly of five or more persons, holding weapons, or carrying things capable of being used as weapons.
Right to liberty and security of person: Article 4(c) of the AFSPA undermines the right to liberty and security of a person in a manner that it allows soldiers to arrest anyone merely on suspicion that a “cognizable offence” has already taken place or is likely to take place in the future. Further, the AFSPA provides no specific time limit for handing arrested persons to the nearest police station. Section 5 of the AFSPA vaguely advises that those arrested be transferred to police custody “with the least possible delay.”
Right to constitutional remedy: Section 6 of the AFSPA immunizes the soldiers from legal accountability for the abuses. The section also restricts state governments to initiate legal proceedings against the soldiers without the approval of the central government. Thus, the Act in a way restricts yet another fundamental right that grants remedy to the citizens in case any of their other fundamental rights are violated.
Thus in short, the Act explicitly violates Articles 13, 14, 19, 20, 21, 22 and 32 provided in Part III of the Indian Constitution which is considered to be the supreme authority in India. It also undermines Article 6 of the International Covenant on Civil and Political Rights (ICCPR) which provides for a non-derogable right to life, encapsulated in the provision that “No one shall be arbitrarily deprived of his life.”
As stated in a report of the Asian Centre for Human Rights, “The strength of any country claiming itself as “democratic” lies in upholding the supremacy of the judiciary and primacy of the rule of law. It requires putting in place effective criminal-law provisions to deter the commission of offences against the innocents and punishing for breaches of such provisions while exercising executive powers; and not in providing the arbitrary powers to law enforcement personnel to be law unto them self. The AFSPA violates basic tenets of criminal justice system in any civilized society- first by providing special powers which tantamount to awarding heavier penalty to the suspect than convicted person would get under normal court, a clear violation of the cardinal principle of criminal justice system- nullumcrimen, nulla poena sine lege and second, through non-application of due process of law which makes the armed forces to be their own judge and jury. Most importantly, by making it mandatory to seek prior permission of the Central government to initiate any legal proceedings against armed forces, the Executive has expressed its lack of faith in the judiciary. Otherwise, it would have been left to the judiciary to decide whether the charges are vexatious or frivolous.”
Evaluating the achievements of the Act:
While introducing the bill in the parliament in August 1958, the then home minister, G. B. Pant, had justified its necessity to tackle the menace of militant Nagas, who having formed the Naga Federal Government (NFG) under A. Z. Phizo had declared themselves as independent. The law was enforced, initially, only for six months. Although introduced as a temporary law to tackle the Naga issue, the Act came to the region never to go again. An immediate review and adequate steps for amending the draconian Act is due for several reasons. When the Act was imposed for the first time in the region, there were only four armed opposition groups in Manipur. However today, there are more than two dozen such groups active in the region while several others are in the making. This shows how the Act has consistently failed to contain the insurgency issue in the North East.
The more intense and widespread frustration-induced discontent is among people, the more intense and widespread collective violence is likely to be.
The continued exploitation under the cover of the Act, systematic denial of access to justice, extrajudicial deprivation of the rule of law, torture, rape and custodial deaths have rather incited factors, the curbing of which were supposed to be the purpose of the Act. As argued by Ted Gurr, one of the most celebrated writers on collective violence, man’s frustration over some of the material and social circumstances of their lives is a necessary pre condition of group protest and collective violence. The more intense and widespread frustration-induced discontent is among people, the more intense and widespread collective violence is likely to be.
The Universal Declaration of Human Rights mentioning- “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”- is prophetic about such situations. There are contesting arguments from the armed forces claiming the Act a necessary instrument to tackle insurgency issues in the region and to ensure ‘National Security’, but it is disturbing to note that the Act has been continuously undermining human security in pursuit of national security. Although it is unrealistic to advocate for the outright withdrawal of the Act, a serious attention towards making the Act more effective by stipulating “Do’s” and “Don’ts” for the armed forces has been long due.
Uddipta Ranjan Boruah is pursuing MA in International Relations at South Asian University, New Delhi.